Civil Rights Corps v. LaSalle
Opinion
24-2251-cv Civil Rights Corps v. LaSalle
In the United States Court of Appeals For the Second Circuit ___________________________________________
August Term 2024 Argued: June 26, 2025 Decided: July 29, 2026
Docket No. 24-2251-cv ___________________________________________
CIVIL RIGHTS CORPS, CYNTHIA GODSOE, NICOLE SMITH FUTRELL, DANIEL S. MEDWED, JUSTIN MURRAY, ABBE SMITH, STEVEN ZEIDMAN,
Plaintiffs-Appellees,
v.
HECTOR D. LASALLE, in his official capacity as Presiding Justice of the Second Judicial Department of the Appellate Division of the Supreme Court of the State of New York,
Defendant-Appellant. *
___________________________________________
Appeal from the United States District Court for the Southern District of New York No. 21-CV-9128, Victor Marrero, District Court Judge. ___________________________________________
Before: MENASHI, LEE, and NATHAN, Circuit Judges.
* The Clerk of Court is respectfully directed to amend the case caption as set forth above. Defendant-Appellant Presiding Justice Hector D. LaSalle of the Second Judicial Department of the Appellate Division of the Supreme Court of the State of New York (“Justice LaSalle” or “the State”) appeals from a judgment entered on July 22, 2024, in the United States District Court for the Southern District of New York (Victor Marrero, District Judge). In 2021, Plaintiffs-Appellees filed grievance complaints against purportedly unethical New York state prosecutors with the Attorney Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts of the Second Judicial Department of the Appellate Division of the Supreme Court of the State of New York. After the Grievance Committee informed them that any resulting proceedings against the twenty-one prosecutors would remain confidential, Plaintiffs-Appellees brought suit under 42 U.S.C. § 1983, asserting that Section 90(10) of the New York Judiciary Law, which by default seals and mandates confidentiality of attorney grievance matters, violates their First Amendment right of access as applied to their complaints. At summary judgment, the district court ruled that a First Amendment presumption of access does attach to formal disciplinary hearings in the Second Department, to records necessary to understand those hearings, and to final dispositions by the Grievance Committee. Because Section 90(10) impermissibly interferes with that right, the district court found the statute to be unconstitutional as applied against Plaintiffs-Appellees’ complaints.
On appeal, we find that, despite the State’s contentions otherwise, Plaintiffs- Appellees’ claims are ripe and abstention, pursuant to O’Shea v. Littleton, 414 U.S. 488 (1974), is unwarranted. Upon de novo review, we conclude that the experience- and-logic test supports a qualified, presumptive First Amendment right of access to formal disciplinary hearings in the Second Department, including all pertinent records, and select dispositions of the Grievance Committee. Consequently, the State may not prohibit Plaintiffs-Appellees’ access to such proceedings and records pertaining to their complaints without making specific, on-the-record findings justifying confidentiality. Therefore, we AFFIRM the judgment of the district court. ___________________________________________
GREGORY L. DISKANT, Patterson Belknap Webb & Tyler LLP, New York, NY, for Plaintiffs-Appellees.
2 STEPHEN J. YANNI, Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Judith N. Vale, Deputy Solicitor General, on the brief), for Letitia James, Attorney General, State of New York, New York, NY, for Defendant-Appellant.
David A. Schulz, Tobin Raju, Media Freedom & Information Clinic, Yale Law School, New Haven, CT, for New York Media Coalition, amici curiae in support of Plaintiffs-Appellees.
Domenick Napoletano, New York State Bar Association, Albany, NY; Rolando T. Acosta, Dante W. Apuzzo, Catherine Perez, Pillsbury Winthrop Shaw Pittman, LLP, New York, NY, for New York State Bar Association, amicus curiae in support of Defendant-Appellant. ___________________________________________
EUNICE C. LEE, Circuit Judge:
Defendant-Appellant Presiding Justice Hector D. LaSalle of the Second
Judicial Department of the Appellate Division of the Supreme Court of the State
of New York (“Justice LaSalle” or “the State”) appeals from a judgment entered on
July 22, 2024, in the United States District Court for the Southern District of New
York (Victor Marrero, District Judge). In 2021, Plaintiffs-Appellees Civil Rights
Corps (“CRC”) and law professors Cynthia Godsoe, Nicole Smith Futrell, Daniel
S. Medwed, Justin Murray, Abbe Smith, and Steven Zeidman (collectively, “the
Law Professors”) filed twenty-one grievance complaints against purportedly
3 unethical New York state prosecutors with the Attorney Grievance Committee for
the Second, Eleventh, and Thirteenth Judicial Districts of the Second Judicial
Department (“Second Department”) of the Appellate Division of the Supreme
Court of the State of New York (“Appellate Division”). After the Grievance
Committee informed them that any resulting proceedings against the twenty-one
prosecutors would remain confidential, Plaintiffs-Appellees brought suit under 42
U.S.C. § 1983, asserting that Section 90(10) of the New York Judiciary Law, which
by default seals and mandates confidentiality of attorney grievance matters,
violates their First Amendment right of access as applied to their complaints. At
summary judgment, the district court ruled that a First Amendment presumption
of access does attach to formal disciplinary hearings in the Second Department, to
records necessary to understand those hearings, and to final dispositions by the
Grievance Committee. Because Section 90(10) impermissibly interferes with that
right, the district court found the statute to be unconstitutional as applied against
Plaintiffs-Appellees’ complaints.
On appeal, we find that, despite the State’s contentions otherwise, Plaintiffs-
Appellees’ claims are ripe and abstention, pursuant to O’Shea v. Littleton, 414 U.S.
488 (1974), is unwarranted. Upon de novo review, we conclude that the experience-
4 and-logic test supports a presumptive First Amendment right of access to formal
disciplinary hearings in the Second Department, including all pertinent records,
and select dispositions of the Grievance Committee. Consequently, the State may
not prohibit Plaintiffs-Appellees’ access to such proceedings and records
pertaining to their complaints without making specific, on-the-record findings
justifying confidentiality. Therefore, we AFFIRM the judgment of the district
court.
BACKGROUND
I. Attorney Grievance Process Overview
Before turning to the specifics of the grievance complaints filed by Plaintiffs-
Appellees, we begin with an overview of New York’s system for regulating the
practice of law, including disciplining attorneys for behavior that violates the
Rules of Professional Conduct (the “Rules”), which are applicable to all members
of the New York Bar. See N.Y. Jud. Law § 90(2); 22 N.Y.C.R.R. § 1200.8.4.
Responsibility over attorney affairs is vested in each of the four state Appellate
Divisions, which in turn may appoint attorney grievance committees that consist
of at least twenty-one voluntary members with a minimum of three non-lawyers.
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24-2251-cv Civil Rights Corps v. LaSalle
In the United States Court of Appeals For the Second Circuit ___________________________________________
August Term 2024 Argued: June 26, 2025 Decided: July 29, 2026
Docket No. 24-2251-cv ___________________________________________
CIVIL RIGHTS CORPS, CYNTHIA GODSOE, NICOLE SMITH FUTRELL, DANIEL S. MEDWED, JUSTIN MURRAY, ABBE SMITH, STEVEN ZEIDMAN,
Plaintiffs-Appellees,
v.
HECTOR D. LASALLE, in his official capacity as Presiding Justice of the Second Judicial Department of the Appellate Division of the Supreme Court of the State of New York,
Defendant-Appellant. *
___________________________________________
Appeal from the United States District Court for the Southern District of New York No. 21-CV-9128, Victor Marrero, District Court Judge. ___________________________________________
Before: MENASHI, LEE, and NATHAN, Circuit Judges.
* The Clerk of Court is respectfully directed to amend the case caption as set forth above. Defendant-Appellant Presiding Justice Hector D. LaSalle of the Second Judicial Department of the Appellate Division of the Supreme Court of the State of New York (“Justice LaSalle” or “the State”) appeals from a judgment entered on July 22, 2024, in the United States District Court for the Southern District of New York (Victor Marrero, District Judge). In 2021, Plaintiffs-Appellees filed grievance complaints against purportedly unethical New York state prosecutors with the Attorney Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts of the Second Judicial Department of the Appellate Division of the Supreme Court of the State of New York. After the Grievance Committee informed them that any resulting proceedings against the twenty-one prosecutors would remain confidential, Plaintiffs-Appellees brought suit under 42 U.S.C. § 1983, asserting that Section 90(10) of the New York Judiciary Law, which by default seals and mandates confidentiality of attorney grievance matters, violates their First Amendment right of access as applied to their complaints. At summary judgment, the district court ruled that a First Amendment presumption of access does attach to formal disciplinary hearings in the Second Department, to records necessary to understand those hearings, and to final dispositions by the Grievance Committee. Because Section 90(10) impermissibly interferes with that right, the district court found the statute to be unconstitutional as applied against Plaintiffs-Appellees’ complaints.
On appeal, we find that, despite the State’s contentions otherwise, Plaintiffs- Appellees’ claims are ripe and abstention, pursuant to O’Shea v. Littleton, 414 U.S. 488 (1974), is unwarranted. Upon de novo review, we conclude that the experience- and-logic test supports a qualified, presumptive First Amendment right of access to formal disciplinary hearings in the Second Department, including all pertinent records, and select dispositions of the Grievance Committee. Consequently, the State may not prohibit Plaintiffs-Appellees’ access to such proceedings and records pertaining to their complaints without making specific, on-the-record findings justifying confidentiality. Therefore, we AFFIRM the judgment of the district court. ___________________________________________
GREGORY L. DISKANT, Patterson Belknap Webb & Tyler LLP, New York, NY, for Plaintiffs-Appellees.
2 STEPHEN J. YANNI, Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Judith N. Vale, Deputy Solicitor General, on the brief), for Letitia James, Attorney General, State of New York, New York, NY, for Defendant-Appellant.
David A. Schulz, Tobin Raju, Media Freedom & Information Clinic, Yale Law School, New Haven, CT, for New York Media Coalition, amici curiae in support of Plaintiffs-Appellees.
Domenick Napoletano, New York State Bar Association, Albany, NY; Rolando T. Acosta, Dante W. Apuzzo, Catherine Perez, Pillsbury Winthrop Shaw Pittman, LLP, New York, NY, for New York State Bar Association, amicus curiae in support of Defendant-Appellant. ___________________________________________
EUNICE C. LEE, Circuit Judge:
Defendant-Appellant Presiding Justice Hector D. LaSalle of the Second
Judicial Department of the Appellate Division of the Supreme Court of the State
of New York (“Justice LaSalle” or “the State”) appeals from a judgment entered on
July 22, 2024, in the United States District Court for the Southern District of New
York (Victor Marrero, District Judge). In 2021, Plaintiffs-Appellees Civil Rights
Corps (“CRC”) and law professors Cynthia Godsoe, Nicole Smith Futrell, Daniel
S. Medwed, Justin Murray, Abbe Smith, and Steven Zeidman (collectively, “the
Law Professors”) filed twenty-one grievance complaints against purportedly
3 unethical New York state prosecutors with the Attorney Grievance Committee for
the Second, Eleventh, and Thirteenth Judicial Districts of the Second Judicial
Department (“Second Department”) of the Appellate Division of the Supreme
Court of the State of New York (“Appellate Division”). After the Grievance
Committee informed them that any resulting proceedings against the twenty-one
prosecutors would remain confidential, Plaintiffs-Appellees brought suit under 42
U.S.C. § 1983, asserting that Section 90(10) of the New York Judiciary Law, which
by default seals and mandates confidentiality of attorney grievance matters,
violates their First Amendment right of access as applied to their complaints. At
summary judgment, the district court ruled that a First Amendment presumption
of access does attach to formal disciplinary hearings in the Second Department, to
records necessary to understand those hearings, and to final dispositions by the
Grievance Committee. Because Section 90(10) impermissibly interferes with that
right, the district court found the statute to be unconstitutional as applied against
Plaintiffs-Appellees’ complaints.
On appeal, we find that, despite the State’s contentions otherwise, Plaintiffs-
Appellees’ claims are ripe and abstention, pursuant to O’Shea v. Littleton, 414 U.S.
488 (1974), is unwarranted. Upon de novo review, we conclude that the experience-
4 and-logic test supports a presumptive First Amendment right of access to formal
disciplinary hearings in the Second Department, including all pertinent records,
and select dispositions of the Grievance Committee. Consequently, the State may
not prohibit Plaintiffs-Appellees’ access to such proceedings and records
pertaining to their complaints without making specific, on-the-record findings
justifying confidentiality. Therefore, we AFFIRM the judgment of the district
court.
BACKGROUND
I. Attorney Grievance Process Overview
Before turning to the specifics of the grievance complaints filed by Plaintiffs-
Appellees, we begin with an overview of New York’s system for regulating the
practice of law, including disciplining attorneys for behavior that violates the
Rules of Professional Conduct (the “Rules”), which are applicable to all members
of the New York Bar. See N.Y. Jud. Law § 90(2); 22 N.Y.C.R.R. § 1200.8.4.
Responsibility over attorney affairs is vested in each of the four state Appellate
Divisions, which in turn may appoint attorney grievance committees that consist
of at least twenty-one voluntary members with a minimum of three non-lawyers.
See 22 N.Y.C.R.R. § 1240.4. The Appellate Divisions also employ staff, principally
5 chief attorneys and other subordinate counsel, to assist each of the attorney
grievance committees. Id. § 1240.5.
A. Second Department’s Grievance Procedure
Although New York’s grievance procedures are virtually identical across
Appellate Divisions, we focus on the entities relevant to this appeal: the Second
Department and the Attorney Grievance Committee for the Second, Eleventh, and
Thirteenth Judicial Districts (the “Committee”), which is one of three such
committees for the Second Department. Presiding Justice LaSalle appoints
members of the Committee, as well as its Chief Attorney.
Before an attorney is publicly disciplined in the Second Department, any
allegations of their misconduct must pass through three stages of review: (1) an
initial screening of the submitted complaint by the Chief Attorney and other staff;
(2) a factual investigation culminating in a report from the staff to the Committee,
which then determines whether there is probable cause of professional misconduct
“warranting the imposition of public discipline,” 22 N.Y.C.R.R. § 1240.7(d)(2)(vi);
and (3) if authorized by the Committee, formal proceedings before the Second
Department that may sustain the charges. Each step of the process is governed by
both public regulations and the internal Second Department Grievance Committee
6 Manual & Forms (the “Manual”).
The system kicks into gear with the filing of a complaint. Although often
submitted by a current or former client, anyone—with or without personal
knowledge of the alleged misconduct—can submit a complaint against an
attorney. Per the regulations, the person or entity that submits a complaint is
referred to as the “complainant.” 22 N.Y.C.R.R. § 1240.2(e). In the initial screening
phase, Committee staff assign a file number to the complaint, access the named
attorney’s registration information and disciplinary history, and then assess
whether the complainant’s allegations satisfy the “threshold conditions” of
jurisdiction (i.e., that the allegations concern a New York attorney), venue (i.e., that
the attorney’s primary office is within the Committee’s territorial bounds), and
“standing.” J. App’x at 971–72. Complaints without jurisdiction or filed in an
improper venue are typically dismissed or transferred. Although not publicly
defined, the Manual explains that a lack of “standing” is found when the
complainant has (1) “no connection” to the named attorney or the underlying
matter, or (2) no “personal knowledge of the underlying facts” (e.g., “simply
relaying to the Committee information . . . learned from some other source”). J.
App’x at 310. When the sender of the complaint lacks standing, an investigation
7 might still be initiated “if there is a sufficient basis to open a sua sponte complaint,”
but the sender is not “designate[d]” as the “complainant,” id., and will be
“den[ied] . . . any further information” regarding the complaint’s status, id. at 970.
After these threshold inquiries, staff provide a recommendation to the Chief
Attorney on how to proceed. The Chief Attorney can decide to “decline to
investigate” a complaint if (1) the person or conduct are not covered by the Rules,
(2) the complaint’s allegations do not amount to a prima facie claim of professional
misconduct, (3) the remedy sought by the complaint is more appropriately sought
in another forum, or (4) the allegations relate to a pending legal action. Id. at 972;
see also 22 N.Y.C.R.R. § 1240.7(d)(1)(i). Alternatively, in certain circumstances, the
Chief Attorney could refer the complaint to another forum. For any of these
outcomes, the complainant must be notified. 22 N.Y.C.R.R. § 1240.7(d)(1)(ii).
If the Chief Attorney decides to open an investigation, a complaint enters
the second stage of review. The respondent attorney is informed of the allegations
and given an opportunity to respond—typically, any written response is
reviewable by the complainant. To build a fulsome record, the Chief Attorney and
staff may, inter alia, interview witnesses, issue a subpoena, or depose the
respondent attorney. Id. § 1240.7(b). The respondent attorney must comply or
8 potentially face sanctions, including the interim suspension of their law license.
Id. § 1240.9(a). After gathering facts, the Chief Attorney and staff
“comprehensive[ly]” document their findings in a report, catalogue evidence for
both sides, and provide the Committee with their recommendation of “possible
dispositions.” J. App’x at 973 (citation modified). The Committee reviews the
report, asks follow-up questions, and requests additional information if needed.
After deliberation, the Committee votes and, based on the majority’s views, issues
its resolution of the complaint.
As relevant here, the Committee may choose between four dispositions: (1)
a dismissal, (2) a “Letter of Advisement,” (3) a “written Admonition,” or (4) an
authorization for a formal proceeding. 1 See 22 N.Y.C.R.R. § 1240.7(d)(2). A
dismissal is warranted when “no misconduct occurred.” J. App’x at 950. A letter
of advisement is appropriate when the respondent “engaged in conduct requiring
comment [but] that, under the facts of the case, does not warrant imposition of
discipline.” 22 N.Y.C.R.R. § 1240.7(d)(2)(iv). A written admonition reflects that,
1 The Committee may also (1) “refer the complaint to a suitable alternative forum upon notice to the respondent and the complainant” if the complaint “involves a fee dispute, a matter suitable for mediation, or a matter suitable for review by a bar association grievance committee,” 22 N.Y.C.R.R. § 1240.7(d)(2)(ii), or (2) “make an application for diversion” to a monitor program for, e.g., substance abuse or mental health issues, id. §§ 1240.7(d)(2)(iii), 1240.11. 9 “by a fair preponderance of the evidence,” the respondent “engaged in
professional misconduct, but that public discipline is not required to protect the
public . . . or deter the commission of similar misconduct.” Id. § 1240.7(d)(2)(v).
Lastly, the Committee may authorize the Chief Attorney to prosecute the
respondent in a formal disciplinary proceeding before the Second Department if
the Committee finds “probable cause . . . that the respondent engaged in
professional misconduct warranting the imposition of public discipline.” Id.
§ 1240.7(d)(2)(vi). All of these dispositions are presumptively confidential. See
N.Y. Jud. Law § 90(10) (“[A]ll papers, records and documents upon the application
or examination of any person for admission as an attorney and counsellor at law
and upon any complaint, inquiry, investigation or proceeding relating to the
conduct or discipline of an attorney or attorneys, shall be sealed and be deemed
private and confidential.”).
The Committee’s disposition is memorialized in a closing letter. In separate
transmittals, the complainant is notified of the determination in “general terms,”
whereas the respondent attorney is provided with a recital of the “facts that
support the Committee’s determination” and advised of their “right to seek review
or reconsideration.” J. App’x at 867. Although the Committee cannot suspend or
10 disbar an attorney, its letters of advisement and written admonitions are not
inconsequential. Both become a part of an attorney’s perpetual disciplinary
record. For example, the Committee or Second Department could consider
instances of such private discipline in “determining the action to be taken or the
discipline to be imposed upon a subsequent finding of misconduct.” 22 N.Y.C.R.R.
§ 1240.2(b), (i).
If authorized by the Committee’s finding of probable cause, a complaint
moves on to the third and final stage: a formal disciplinary proceeding in the
Second Department. The process starts when the Committee files a “notice of
petition” in the Second Department and serves the petition, detailing specific
charges and allegations, on the respondent attorney. 2 See id. § 1240.8(a)(1). By
default, the attorney has 20 days to answer and reply. Id. As a “special
proceeding[]” under New York law, id., the de facto adversaries are the Committee,
as the “petitioner” represented by the Chief Attorney and staff, and the respondent
attorney, who may also be represented by counsel. See N.Y. Jud. Law § 90(6). The
two sides exchange statements of fact and engage in discovery as needed and
2 Once the filing of a petition is authorized, the staff report informing the Committee’s deliberations is not made available to the Second Department, the respondent attorney, or the complainant. 11 permitted. 22 N.Y.C.R.R. § 1240.8(a)(2). At any time after the petition has been
filed and served, the parties to the proceeding may file a joint motion with the
Second Department stipulating to certain facts and requesting the imposition of
discipline by consent. Id. § 1240.8(a)(5).
Otherwise, to the extent facts are disputed, the Second Department may
refer unresolved issues to a special referee for a hearing. See id. § 1240.8(b)(1). The
hearings begin with opening statements, followed by witness examinations, and
conclude with summations. After consideration of any “post-hearing
submissions,” the referee must file in the Second Department a “written report
setting forth the referee’s findings and recommendations,” which the parties may
then move to “affirm or disaffirm.” Id. The Second Department “may” sustain the
charges if the referee found, “by a fair preponderance of the evidence, each
essential element of the charge,” or it may reject the referee’s findings. Id. As for
remedy, the Second Department is broadly empowered to “impose discipline or
take other action” that is “appropriate to protect the public, maintain the honor
and integrity of the profession, or deter others from committing similar
misconduct.” Id. § 1240.8(b)(2). Ultimately, the Second Department will either
dismiss the complaint, remand the matter back to the Committee for private
12 discipline (e.g., a letter of advisement or written admonition), or impose public
discipline via censure, suspension, or disbarment.
B. Confidentiality Requirements
Virtually everything connected with the grievance procedure is kept out of
the public eye. Pursuant to N.Y. Judicial Law § 90(10), “all papers, records and
documents . . . upon any complaint, inquiry, investigation or proceeding relat[ed]
to the conduct or discipline of an attorney . . . shall be sealed and be deemed
private and confidential.” N.Y. Jud. Law § 90(10). The veil may be pierced in a
limited number of ways. By statute, if the Second Department sustains a charge
that results in public discipline, “the records and documents in relation thereto
shall be deemed public records.” Id. But interested parties cannot
contemporaneously access the disciplinary proceedings (e.g., sit in on a hearing).
Instead, the records are retrospectively available upon request. 3
New York Judicial Law § 90(10) also permits the Second Department to
discretionarily “divulge[] all or any part of” the disciplinary record “upon good
3 Though not germane to this appeal, information regarding the grievance proceedings can be disclosed in two other ways. First, the complainant and respondent attorney are notified of the Committee’s dispositions in the distinct letters discussed earlier. Second, a respondent attorney can obtain records of their own disciplinary history or, if permitted by the Second Department, can choose to waive confidentiality. 13 cause being shown.” Id. Any interested party, including a member of the public,
may file a good-cause application. Each application must explain why disclosure
is requested, identify the records or proceedings sought, and detail why other
methods for obtaining the information “are unavailable or impractical.” 22
N.Y.C.R.R. § 1240.18(d). The Presiding Justice can require that good-cause
applications be made upon notice to the Committee and/or the respondent
attorney. From 2013 to 2023, the Second Department received around 160 good-
cause applications, largely from law enforcement agencies conducting criminal
investigations. The Second Department “rarely receives” requests for other
purposes. J. App’x at 855.
II. Factual Background
On May 3, 2021, the Law Professors 4 filed twenty-one complaints (the
“Grievance Complaints”) against attorneys currently and formerly associated
with the Queens County District Attorney’s Office for their misconduct,
substantiated by judicial findings and public information, while serving as
4 The Law Professors have backgrounds and practices that span legal ethics, professional responsibility, and criminal law and procedure. All are duly licensed lawyers, and all except one are members of the New York Bar. 14 assistant district attorneys. 5 The Grievance Complaints were publicly posted by
the Law Professors on AccountabilityNY.org, a website sponsored by CRC. Each
complaint asks that the named attorney be publicly disciplined. 6
Within a month of the complaints being filed, James Johnson, then-
Corporation Counsel for New York City, sent a letter (the “Johnson Letter”) on
June 2, 2021, on behalf of the Queens District Attorney’s Office to the Committee,
criticizing the Law Professors’ “very public campaign” as “contrary to both the
law and the principles on which the grievance process is based,” and accused the
Law Professors of engaging in “misuse and indeed abuse of the grievance process
5Since then, the Law Professors have filed twenty-nine additional complaints. Those complaints are not at issue in this appeal.
6 By way of example, consider the complaint requesting the disbarment of Charles Testagrossa. Corralling only public sources and disclaiming any personal knowledge, the Law Professors summarized in a 21-page dossier how, in violation of the Rules, Testagrossa suppressed exculpatory evidence and deliberately misled the Queens County Supreme Court in the 1999-2000 trials of George Bell, Gary Johnson, and Rohan Bolt for the murders of Ira Epstein and off-duty police officer Charles Davis. See generally People v. Bell, 143 N.Y.S.3d 840 (N.Y. Sup. Ct. 2021). Testagrossa’s violations of constitutional and ethical obligations led to the wrongful conviction and unjustified imprisonment of Bell, Johnson, and Bolt for over two decades. Id. at 852–55. In March 2021, the Queens County Supreme Court vacated the convictions, noting that “[t]hese three defendants were undoubtedly wronged by [Testagrossa’s] misconduct,” including his on-the-record “misrepresentation[s]” and “deliberate falsehood[s].” Id. at 853. Nonetheless, the Second Department has not yet publicly disciplined Testagrossa, who remains a licensed New York attorney. 15 to promote a political agenda [that] is harmful to the profession.” J. App’x at 93–
95. Disclaiming any view on the merits of the allegations, Johnson requested only
that the Committee “consider the manner in which the [Grievance Complaints
were] filed” in their review process. Id. at 93. The letter was simultaneously
transmitted to the Law Professors but warned that “any disclosure of this letter
. . . without proper court permission would [also] be unlawful under the Judiciary
Law.” Id. at 95 n.4.
About a week after the Johnson Letter, the Grievance Committee’s Chief
Attorney, Diana Kearse, acknowledged receipt of the “complaints against current
or former Assistant District Attorneys” in a letter sent to the Law Professors (the
“Kearse Letter”). 7 Id. at 98. However, the Kearse Letter stated that, since the
Grievance Complaints openly admitted that the petitioners lacked personal
knowledge, the “allegations would be initiated by the Grievance Committee, sua
sponte, and remain confidential pursuant to New York State Judiciary Law § 90,
unless they resulted in public discipline imposed by the Appellate Division.” Id.
The letter did not confirm “whether any investigations will or will not be
7 Although some Grievance Complaints initially had been sent to other appropriate Grievance Committees, the complaints were all transferred to the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts. 16 pursued.” Id. In effect, because the Law Professors were deemed not to have
standing under the Manual, they would not be informed of any updates regarding
the Grievance Complaints.
To date, none of the Grievance Complaints have resulted in public
discipline. It is not known if the Grievance Complaints have been dismissed,
resulted in nonpublic discipline, or are otherwise still pending. Neither the Law
Professors nor CRC have filed good-cause applications. Although the Law
Professors requested updates on each of the Grievance Complaints via letter to the
Committee, that request did not prompt a response.
III. Procedural History and the District Court Decision
CRC and the Law Professors (collectively, “Plaintiffs”) initiated the instant
action, arising under 42 U.S.C. § 1983, in November 2021 against the Corporation
Counsel of the City of New York, the Queens County District Attorney, the Chair
of the Committee, the Chief Attorney of the Committee, and the Presiding Justice
of the Second Department (collectively, “Defendants”), all in their official and
personal capacities. Plaintiffs asserted five claims: (1) retaliation in violation of the
Law Professors’ First Amendment right to make and publicize the Grievance
Complaints (the “First Claim”); (2) violation of the Fourteenth Amendment’s
17 Equal Protection Clause by denying the Law Professors standing as
“complainants” (the “Second Claim”); (3) as-applied and facial challenges to
Section 90(10) for violating the First Amendment and its New York State
Constitution analogue because the provision operates as a content-based speech
restriction that prevents publicizing the Grievance Complaints, the Johnson and
Kearse Letters, and any future information that the Committee may share (the
“Third Claim”); (4) violation of a qualified public right of access to government
proceedings and records under the First Amendment, as applied to the Grievance
Complaints (the “Fourth Claim”); and (5) a declaratory finding of “good cause”
with respect to the Grievance Complaints so that the public would be apprised of
any developments (the “Fifth Claim”). 8
Along with the complaint, Plaintiffs attached various exhibits, including the
Johnson and Kearse Letters, under seal to avoid violating Section 90(10). But, in
January 2022, the district court granted Plaintiffs’ motion to unseal those
documents. The district court held that that both a common law and First
Amendment right of access attached to the exhibits because they were “judicial
8 The First Claim was against Corporation Counsel, the Queens District Attorney, and the Committee Chair and Chief Attorney. The Second Claim was against the Committee Chair and Chief Attorney. The latter three claims were against all Defendants. 18 documents” filed in an Article III court, and no countervailing interest justified
continued secrecy. See Civil Rights Corps v. Pestana, No. 21-cv-9128, 2022 WL
220020, at *4–6 (S.D.N.Y. Jan. 25, 2022). Subsequently, the district court largely
denied the Defendants’ motion to dismiss. See Civil Rights Corps v. Pestana, No. 21-
cv-9128, 2022 WL 1422852, at *12 (S.D.N.Y. May 5, 2022).
In June 2022, the district court granted in part Plaintiffs’ motion for partial
summary judgment as to their Third Claim, regarding the First Amendment
challenges to the restrictions on their ability to publicize the Grievance Complaints
and related documents. Without reaching Plaintiffs’ facial challenge, the district
court determined that Section 90(10) was unconstitutional as applied because it
improperly restrained the publication of a “complainant’s own grievance
complaint related to attorney discipline” and all related correspondence. Civil
Rights Corps v. Pestana, No. 21-cv-9128, 2022 WL 2118191, at *10 (S.D.N.Y. June 13,
2022). The State raises no challenge to that ruling on appeal. Later, through
stipulations in March 2023 and April 2024, the parties agreed to voluntarily
dismiss with prejudice all claims against all defendants except for the Fourth
Claim—an as-applied First Amendment qualified right of public access claim to
all proceedings and records associated with the Grievance Complaints—as against
19 Justice LaSalle.
In a thoughtful and well-reasoned July 2024 order and opinion spanning
over a hundred pages, the district court granted in part and denied in part
Plaintiffs’ motion for summary judgment on the one remaining claim and denied
in full Justice LaSalle’s cross-motion for summary judgment. 9 Civil Rights Corps v.
LaSalle, 741 F. Supp. 3d 112, 128 (S.D.N.Y. 2024). To reach the merits of Plaintiffs’
First Amendment right-of-access claim, the district court first reaffirmed its
subject-matter jurisdiction and then explained why abstention was unnecessary
under the circumstances. Id. at 137–52. The district court rejected the State’s
contention that the Plaintiffs’ claims were unripe as a constitutional and prudential
matter. 10 Because Plaintiffs “are suffering an ongoing injury, which is certain to
9 In recapping the district court’s decision, we focus on its holdings and pertinent reasoning as relevant to the issues raised by the parties on appeal. All other contentions have been forfeited. See, e.g., McCarthy v. SEC, 406 F.3d 179, 186 (2d Cir. 2005) (“[I]t is not our obligation to ferret out a party’s arguments.”).
10 Regarding subject-matter jurisdiction, the district court also rejected the State’s claims that Plaintiffs had not suffered an injury-in-fact that satisfied Article III’s standing requirement and that Justice LaSalle was entitled to state sovereign immunity as reflected in the Eleventh Amendment. See Civil Rights Corps, 712 F. Supp. 3d at 137–41, 144–46. The district court also rejected Justice LaSalle’s affirmative defenses of absolute judicial immunity and absolute legislative immunity, given that Plaintiffs do not seek damages and their claim is not focused on Justice LaSalle’s role as a policymaker, only his role in following Section 90(10)’s command to keep attorney disciplinary matters confidential. Id. at 152–55. 20 continue,” by reason of the denial of their access, the district court found that the
Plaintiffs’ Fourth Claim was constitutionally ripe. Id. at 142. The district court
explained that Plaintiffs’ failure to file good-cause applications was immaterial,
seeing as “[i]t is well-established that exhaustion of remedies under state law is
not required to make a Section 1983 claim ripe.” Id. (citing Knick v. Township of
Scott, 588 U.S. 180, 185 (2019)). Moreover, because the applicability of a First
Amendment right of access to the Grievance Complaints presents a purely legal
question, there was no prudential reason to wait for the filing of a good-cause
application before determining the issue. Id. at 143. Similarly, the district court
reasoned that prudence did not require it to wait to address the right of access
issue until after the relevant disciplinary hearings because Section 90(10) “does not
allow the State to disclose even the pendency of disciplinary proceedings until
they end in disbarment or suspension,” and thus the court had no way of knowing
“the stage to which those proceedings have progressed to date” or whether those
hearings will ever happen. Id.
The district court found the State’s invocation of abstention similarly
unavailing. 11 Id. at 147. Though a federal court may not ordinarily abstain from
11 The district court had earlier held, in its ruling on the State’s motion to dismiss, that the 21 exercising its subject-matter jurisdiction, the Supreme Court has recognized that a
court still retains some discretion regarding whether to grant certain forms of
relief. See New Orleans Pub. Serv., Inc. v. Council of City of New Orleans (“NOPSI”),
491 U.S. 350, 358–59 (1989). Most relevant for present purposes, the State claimed
that abstention was required under O’Shea v. Littleton, 414 U.S. 488 (1974), wherein
the Supreme Court cautioned that federal courts should not grant injunctive relief
that effectively supervises “the operation of state court functions” and so “is
antipathetic to established principles of comity,” id. at 501. The State argued that
Plaintiffs’ requested relief would work such an intervention by “usurp[ing] the
Younger, O’Shea, and Pullman abstention doctrines were inapplicable. Civil Rights Corps, 2022 WL 1422852, at *3–7. See generally Younger v. Harris, 401 U.S. 37 (1971); O’Shea v. Littleton, 414 U.S. 488 (1974); R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941). In its summary judgment motion, the State again raised Younger and O’Shea abstention and raised anew the Rooker-Feldman doctrine. Civil Rights Corp., 741 F. Supp. 3d at 147. See generally D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923). In reiterating that Younger abstention, which “warn[s] of federal injunctions dictating the course of ongoing state criminal proceedings,” does not apply, the district court reasoned that although “disciplinary proceedings are of a sufficiently similar character to criminal proceedings” such that Younger abstention’s concerns of “comity and federalism” are triggered, Plaintiffs did not ask for any direct intervention into the proceedings themselves—only access. Civil Rights Corps, 741 F. Supp. 3d at 147– 48. As for Rooker-Feldman abstention, which proscribes a district court’s “review [of] ‘state court decisions in particular cases arising out of judicial proceedings,’” the district court found that the sealing of attorney grievance proceedings and records “cannot be fairly said to be a judicial function” because it does not concern “a dispute between parties.” Id. at 151–52 (quoting Feldman, 460 U.S. at 486). Because the State does not challenge these rulings on appeal, we focus on O’Shea abstention. 22 state court’s role” in deciding good-cause applications and by “requir[ing] an
extensive revamp” of the Second Department’s recordkeeping protocol for
disciplinary proceedings. Civil Rights Corps, 741 F. Supp. 3d at 148 (citation
modified).
Nevertheless, the district court found O’Shea abstention unwarranted under
the circumstances. Id. at 151. It reasoned that a state court’s role in adjudicating
good-cause applications was irrelevant to a potential declaratory judgment that a
First Amendment right of access attaches to the Grievance Complaints, since the
“affirmative requirement of ‘good cause’ to access public records falls among the
provisions of Section 90(10) that Plaintiffs find constitutionally offensive to the
First Amendment’s presumption of access.” Id. at 149. Assuming Plaintiffs
prevail, the State would have latitude in devising a constitutionally compliant
procedure. The district court also was not convinced that the relief would
necessarily require a wholesale restructuring of recordkeeping procedures, given
that Plaintiffs only sought access to records associated with the twenty-one
Grievance Complaints. But even if such a revamp were necessary, it would be a
mild intrusion on state courts’ affairs as compared to the relief in O’Shea, where “a
sweeping permanent injunction that prohibited two state judges from doing their
23 work in a racially discriminatory way” would have subjected “every future
decision by the defendant judges” to “re-litigat[ion in federal court] (with no clear
legal standard) for compliance with the federal injunction.” Id. Here, the district
court found that the scope and nature of federal court involvement would be
narrower and less intrusive, homed in on only “a state court’s recordkeeping
policies and the closure of a hearing room to the public.” Id. at 150.
Arriving at the merits, the district court began by explaining the relevant
law. Whether a First Amendment qualified right of access attaches to “a particular
government proceeding or record,” id. at 155, turns on the experience-and-logic
test announced by the Supreme Court in Press-Enterprise Co. v. Superior Court of
California (“Press-Enterprise II”), 478 U.S. 1, 9 (1986); see Civil Rights Corps, 741 F.
Supp. 3d at 155–56. That test requires assessing “(1) ‘whether the place and
process have historically been open to the press and general public,’ and (2)
‘whether public access plays a significant positive role in the functioning of the
particular process in question.’” Hartford Courant Co. v. Carroll, 986 F.3d 211, 219
(2d Cir. 2021) (quoting Press-Enterprise II, 478 U.S. at 8). Once a First Amendment
presumption is established under the experience-and-logic test, it may still be
overcome “based on findings that closure is essential to preserve higher values
24 and is narrowly tailored to serve that interest.” Press-Enterprise II, 478 U.S. at 9
(quoting Press-Enterprise Co. v. Superior Ct. of Cal. (“Press-Enterprise I”), 464 U.S.
501, 510 (1984)).
The district court then assessed whether a right of access attaches at each
stage of the grievance process. Starting with formal Second Department
proceedings that might lead to the imposition of public discipline—the most
severe sanction—the district court found that both experience and logic confirm
that the First Amendment requires presumptive open access to both the “hearings
and any documents necessary to understand those hearings.” Civil Rights Corps,
741 F. Supp. 3d at 156. On experience, the district court explained that, since the
English common law of the founding period, judges have been empowered to
discipline attorneys in open court, and proceedings to disbar or suspend an
attorney “were historically prosecuted by private parties as ordinary equity suits
or contempt proceedings.” Id. at 157. Modern Second Department proceedings
retain “almost all the same key features”—initiation by petition, service on the
respondent, and an adversarial hearing with potential witnesses. Id. Until the
early 20th century, attorney disbarment proceedings were public and mentioned
in newspapers as spectacles. Id. at 158. The district court rejected the State’s
25 contention that any historical survey should start in 1945, when the New York
Judicial Law was first passed and shifted the mode of inquiry from adversarial to
inquisitorial; instead, the district court focused on longstanding tradition from
common-law England through the early days of the Republic. Id. at 156–58.
For the district court, logic reinforced permitting public access. The
principal “concern of a disciplinary proceeding is the protection of the public in
its reliance on the integrity and responsibility of the legal profession,” id. at 159
(quoting In re Rowe, 80 N.Y.2d 336, 341 (1992)), but the public cannot place its “faith
in a process that it cannot see,” id. Although “misconduct of [any] attorney[] is
uniquely harmful to administration of justice,” the district court also found that
the First Amendment interests in this case are amplified because the Grievance
Complaints seek clarity on how prosecutors—charged by the public to fairly
conduct criminal trials—are disciplined for their misconduct. Id. at 160–61.
Accordingly, the district court concluded that a presumptive First Amendment
right of access attaches to disciplinary hearings in the Second Department, as well
as to documents related to those hearings.
Turning to the Committee’s role at the stages prior to formal proceedings,
the district court assessed whether a qualified right of public access attaches to, as
26 narrowed by Plaintiffs’ request, dispositions under 22 N.Y.C.R.R. § 1240.7(d)(2).
Id. at 162–63. First, the district court reasoned that experience counsels in favor of
default access because the historical antecedent of Committee dispositions is
adjudication of attorney misconduct—not, as the State suggested, investigation of
allegations—because “when the Committee issues dispositions, it makes an
authoritative determination.” Id. at 163–64. The Committee only acts on a
“completely developed factual record and after considering the positions of both
its staff and the respondent attorney.” Id. at 164. Often, a complaint is wholly
resolved by the Committee, in its function as a neutral arbiter, through private
discipline such as a letter of advisement, and those dispositions are permanent. Id.
at 164–65. Although there is more recent history of “private bar association
proceedings,” the district court found that it was “outweighed by the preceding
centuries of public discipline.” Id. at 167.
As for logic, the district court found that the same “benefits that flow from
public monitoring of judicial work” with respect to Second Department
proceedings apply to the Committee’s dispositions. Id. However, the district court
admitted that some “differences” between the Second Department’s work and that
of the Committee gave it “pause.” Id. at 168. The district court acknowledged that
27 there is some “risk” that innocent attorneys may have their reputations needlessly
tarred if all dispositions were publicized, given that some outcomes do not require
any “evidentiary finding that actionable misconduct has occurred.” Id.
(contrasting, inter alia, dismissals and letters of advisement, which do not require
any evidentiary finding under 22 N.Y.C.R. § 1240.7(d)(2), with written
admonitions and authorizations for formal proceedings, which do). Yet, that does
not necessarily counsel in favor of sealing every disposition. In the district court’s
view, a dismissal, referral to another forum, or a stay pending diversion, see 22
N.Y.C.R.R. § 1240.7(d)(2)(i)–(iii), would “communicate nothing” about the merits,
Civil Rights Corp., 741 F. Supp. 3d at 168. And although a letter of advisement does
not require a “finding of professional misconduct,” it still requires “a finding that
‘the respondent has engaged in conduct requiring comment’”—a finding that the
district court determined should not necessarily be secret by default. Id. (quoting
22 N.Y.C.R.R. § 1240.7(d)(2)(iv)). Overall, the district court was persuaded that the
public should be able to review the Committee’s dispositions not only to
understand its affirmative action but also its inaction. Id. And so the district court
concluded that a presumptive First Amendment right of access attaches to
Committee dispositions as well.
28 Finally, in a ruling unchallenged on appeal, the district court found that the
Chief Attorney’s role is “purely investigatory,” and therefore any dismissals based
on “the Chief Attorney's determination that there is nothing she can or should
investigate”—plus related proceedings and documents—are not subject to the
First Amendment’s right of access. Id. at 169. Neither experience nor logic warrant
interfering with the Chief Attorney’s ability to “develop the factual record and
attain truth” without public scrutiny. Id. The Chief Attorney cannot “make any
substantive decision about what the appropriate action is for a grievance
complaint,” but can only decline to investigate under 22 N.Y.C.R.R. § 1240.7(d)(1).
Id.
Having found that the First Amendment requires presumptively
publicizing some portions of New York’s attorney disciplinary process, the district
court considered whether the State had met its high burden of overcoming that
presumption by justifying the confidentiality of Second Department proceedings
and Committee dispositions. Id. at 169–70. It had not. According to the district
court, the State had not explained why its “asserted privacy and confidentiality”
interests in the lives of attorneys, their clients, and witnesses trumped the First
Amendment’s “presumption of openness.” Id. at 170. Even though the Plaintiffs
29 brought as-applied challenges with respect to their Grievance Complaints
specifically, the State failed to offer any “defense of its sealing process” with
respect to those “twenty-one specific cases.” Id.
Ultimately, the district court entered a declaratory judgment that a
presumptive First Amendment right of access attaches to (1) all Second
Department disciplinary hearings regarding the Grievance Complaints and any
documents necessarily implicated, and (2) all dispositions of the Grievance
Complaints by the Committee, rendered pursuant to 22 N.Y.C.R.R. § 1240.7(d)(2).
Id. at 172. To restrict access by CRC and the Law Professors, the Second
Department or Committee would need to provide on-the-record findings
regarding the higher values served by the restrictions, that the restrictions are
narrowly tailored, and that no alternative to confidentiality would suffice. Id
The State timely appealed.
DISCUSSION
I. Standard of Review
“We review the district court’s grant of summary judgment de novo,
construing the facts in the light most favorable to the non-moving party and
drawing all reasonable inferences in its favor.” Knox v. CRC Mgmt. Co., 134 F.4th
30 39, 47 (2d Cir. 2025) (quoting Ashley v. City of New York, 992 F.3d 128, 136 (2d Cir.
2021)). We also review the district court’s legal conclusions concerning ripeness
and abstention de novo. See Revitalizing Auto Cmtys. Env't Response Tr. v. Nat'l Grid
USA (“RACER”), 10 F.4th 87, 99 (2d Cir. 2021) (de novo review of ripeness);
Disability Rts. N.Y. v. New York (“DRNY”), 916 F.3d 129, 133 (2d Cir. 2019) (de novo
review of abstention).
II. Ripeness & Abstention
On appeal, the State asks that we reverse the district court’s exercise of
jurisdiction and dismiss the lawsuit entirely for two reasons. First, it argues that
Plaintiffs bring an unripe claim that a federal court, as a matter of law, cannot hear
and, as a matter of prudence, should not hear. Second, it contends that the
requested relief mandates O’Shea abstention because, if permitted, it would place
the State’s internal court processes under a federal court’s oversight. We are
unpersuaded. For the reasons that follow, we affirm the district court’s lawful and
prudent exercise of its jurisdiction.
A. Ripeness
“Ripeness is a justiciability doctrine designed ‘to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
31 disagreements.’” Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 807 (2003)
(quoting Abbott Lab’ys v. Gardner, 387 U.S. 136, 148–49 (1967)). There are “two
overlapping threshold criteria” concerning “whether a case has been brought
prematurely”—constitutional ripeness and prudential ripeness. Simmonds v.
I.N.S., 326 F.3d 351, 356–57 (2d Cir. 2003). Constitutional ripeness is “drawn from
Article III limitations on judicial power.” In re Methyl Tertiary Butyl Ether (MTBE)
Prods. Liab. Litig., 725 F.3d 65, 109 (2d Cir. 2013). It “overlaps with the standing
doctrine, ‘most notably in the shared requirement that the plaintiff’s injury be
imminent rather than conjectural or hypothetical.’” Id. at 110 (quoting Ross v. Bank
of Am., N.A. (USA), 524 F.3d 217, 226 (2d Cir. 2008)).
The Supreme Court has previously identified a ripeness doctrine based on
“prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hosp. Ass’n,
538 U.S. at 808 (quoting Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 58 n.18 (1993)).
More recently, however, it has cast doubt on “the continuing vitality of the
prudential ripeness doctrine.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167
(2014). Our own court has “not directly addressed whether the prudential
ripeness doctrine remains good law,” but we have emphasized that “the Supreme
Court’s cautious approach to prudential ripeness is a reminder that the doctrine
32 constitutes a narrow exception to the strong principle of mandatory exercise of
jurisdiction.” RACER, 10 F.4th at 102. Assuming that such an exception is
available, prudential ripeness is comparatively “flexible” and serves as a “tool that
courts may use to enhance the accuracy of their decisions and to avoid becoming
embroiled in adjudications that may later turn out to be unnecessary or may
require premature examination of, especially, constitutional issues that time may
make easier or less controversial.” Simmonds, 326 F.3d at 357. To determine if a
claim is prudentially ripe, a court asks two questions: (1) “whether the claim is fit
for judicial resolution” and (2) “whether and to what extent the parties will endure
hardship if decision is withheld.” RACER, 10 F.4th at 100 (quoting In re MBTE
Prods. Liab. Litig, 725 F.3d at 110).
Before us, the State contends that any First Amendment right-of-access
claim to the Grievance Complaints’ dispositions is unripe because CRC and the
Law Professors have not pursued the pathway for access readily permitted by
Section 90(10): good-cause applications. According to the State, because the
Plaintiffs have not filed any good-cause applications, and thus have not yet been
denied the opportunity to obtain access, there has been no “completed
constitutional violation” enabling Article III jurisdiction. Appellant’s Br. at 37. In
33 the State’s view, the district court erred by misunderstanding this argument to
impose an administrative exhaustion requirement. Instead, the argument is that
Plaintiffs have not yet suffered a First Amendment injury because they have not
been denied access to any records pursuant to Section 90(10). The State also takes
umbrage with the district court’s focus on Plaintiffs’ injury that resulted from the
Chief Attorney’s finding that Plaintiffs lacked standing as complainants, arguing
that whether Plaintiffs had a right to access information regarding the disciplinary
proceedings as parties to those proceedings is “irrelevant to their First
Amendment claim based on a purported right of public access.” Id. at 38. And, it
adds that the district court was wrong to credit Plaintiffs’ speculative argument
that submission of good-cause applications would likely be futile.
In short, the State argues that Plaintiffs’ claims are constitutionally and
prudentially unripe for the same reason: the Plaintiffs’ failure to file good-cause
applications. That failure, the State says, means that Plaintiffs have not yet
suffered a cognizable injury—but even if they have, their claims are not
prudentially ripe because the grant of a future good-cause request would moot the
claim and a denial would permit New York courts to address the “novel
constitutional issue of first impression.” Id. at 39.
34 We disagree and hold that Plaintiffs’ First Amendment right-of-access claim
is ripe. 12 As a constitutional matter, the State is mistaken that there is no First
Amendment injury to any public right of access because “plaintiffs never sought
public access through the available statutory procedure,” i.e., Section 90(10)’s
good-cause application process. Appellant’s Reply Br. at 5. Section 90(10) imposes
a blanket default of sealed and confidential proceedings and records. As an
exception, the provision allows that, “upon good cause being shown, the justices
of the appellate division . . . are empowered, in their discretion, by written order,
to permit to be divulged all or any part of such papers, records and documents.”
N.Y. Jud. Law § 90(10). But, as the district court correctly found, this exception is
no answer to Plaintiffs’ claim that Section 90(10) causes ongoing harm by imposing
nondisclosure in the first instance. See N.Y. C.L. Union v. N.Y.C. Transit Auth.
12 Preliminarily, we note that CRC and the Law Professors are correct that, at least with respect to the pre-enforcement context, the Second Circuit has applied “somewhat relaxed standing and ripeness rules” to First Amendment claims. Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 689 (2d Cir. 2013). Although our case law in this area has often focused on pre-enforcement free-speech claims, our precedent is not so expressly limited. For instance, in Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2005), we cited our less stringent ripeness standard approvingly in the context of a First Amendment right-of-access claim. We found the plaintiff’s claim, predicated on yet-to-be-enforced trespass notices that threatened prosecution if he entered courthouse grounds, to be “ripe for our review.” Id. at 80 n.27. Regardless, we need not and do not decide whether a relaxed form of ripeness applies in this case because Plaintiffs’ claim is ripe under the typical standard. 35 (“NYCTA”), 684 F.3d 286, 295–96 (2d Cir. 2012) (holding that a policy preventing
“the public’s access to the [administrative] hearing . . . on an ongoing basis” is
sufficient to establish a constitutional injury).
The State fundamentally misunderstands the nature of Plaintiffs’ injury. A
statutory provision vesting discretion in the Second Department to potentially
alleviate the injury does not unripen a claim. Plaintiffs’ First Amendment right-
of-access claim was ripe upon non-notice of any adjudicative activity regarding
the Grievance Complaints, as required by Section 90(10). Compounding the harm,
the State denied the Law Professors any status as “complainants” for their
Grievance Complaints and thereby denied even limited information that they may
have been otherwise entitled to.
The State also fails to persuasively explain why requiring a good-cause
application to effectuate a right of access is different from imposing a de facto state
administrative exhaustion requirement. “[T]he settled rule is that exhaustion of
state remedies is not a prerequisite to an action under 42 U.S.C. § 1983.” Knick, 588
U.S. at 185 (citation modified). To evade that principle, the State points to Kentucky
Press Association v. Kentucky, 454 F.3d 505 (6th Cir. 2006), in which the Sixth Circuit
dismissed as unripe a challenge to the confidentiality of Kentucky courts’ juvenile
36 proceedings and records, in part because the plaintiff “never petitioned for access”
under the relevant law. Appellant’s Br. at 36 (citing 454 F.3d at 510). But Kentucky
Press is distinguishable: there, faced with a facial challenge rather than an as-
applied challenge, the Sixth Circuit held that the dispute was unripe because state
courts had yet to interpret the challenged state statutes to bar access to juvenile
proceedings at all. See 454 F.3d at 510 (“[T]here is one fact of crucial importance
that has yet to be determined: whether Kentucky law, as interpreted by the
Kentucky courts, completely closes juvenile proceedings and records to the
media[.]”). 13 If the state court later interpreted the statute to allow some media
access, Kentucky Press’s constitutional claim “would transform . . . into just the
type of ‘abstract disagreement’ that the ripeness doctrine . . . prevents [courts]
from adjudicating.” Id. (alteration adopted) (quoting Thomas v. Union Carbide Agr.
Prods. Co., 473 U.S. 568, 580 (1985)).
13 The Kentucky Press Association filed a facial challenge to “four provisions of the Kentucky Uniform Juvenile Code.” Kentucky Press, 454 F.3d at 507. The relevant provision required “that all juvenile records remain confidential, allowing disclosure only to [(1)] a limited class of individuals,” specifically those that “have a direct interest in the case or in the work of the court,” and (2) “in situations ordered by the court for good cause.” See id. at 507–08 (citation modified). But unhelpful to Justice LaSalle, the Sixth Circuit relied not on a potential reasonable interpretation of the “good cause” clause but that of the “direct interest” clause to find that the Association’s claim may be obviated. Id. 37 In contrast, Section 90(10)’s text permits no alternative interpretation that,
by default, opens public access to some portion of the grievance procedures. Nor
does the State argue that there exists an alternative interpretation of the provision.
The only potential route to access is the good-cause application, but if we were to
require a good-cause application before an actionable constitutional claim could
arise, we would unravel the settled rule of non-exhaustion for § 1983 claims and,
in doing so, perpetuate the harm that a First Amendment right-of-access claim
seeks to vindicate. 14 See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d
Cir. 2006) (explaining that, in the context of delayed access, “[e]ach passing day
may constitute a separate and cognizable infringement of the First Amendment”
(quoting Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.
14 Because we hold that there is no exhaustion requirement in the form of a good-cause application, we need not reach Plaintiffs’ alternative argument that filing such an application would have been futile. We note, however, that the State did not dispute before the district court—and does not dispute now—that only three good-cause applications stemming from an interested member of the public, rather than law enforcement agencies or another jurisdiction’s attorney disciplinary authority, “have been granted since 1945.” Civil Rights Corps, 741 F. Supp. 3d at 142. In fact, a prior effort by a nonprofit to unseal all disciplinary records associated with a state prosecutor, who had resigned for withholding exculpatory evidence in a murder trial that resulted in an improper conviction, failed to prompt public access. See In re Innocence Project, Inc., No. 2019-05674, Decision & Order on Appl. (App. Div. 2d Dep’t July 12, 2019). See generally In re Kurtzrock, 138 N.Y.S.3d 649, 653 (App. Div. 2d Dep’t 2020) (discussing particulars of the state prosecutor’s misconduct). 38 1994)); see also Neb. Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (1975) (Blackmun, J., in
chambers).
As a prudential matter, we see no reason for further delay. Time will not
“make [it] easier or less controversial” to determine whether there is an as-applied,
presumptive right of access under the First Amendment to the disposition of the
Grievance Complaints. See Simmonds, 326 F.3d at 357. Because the merits issue is
a purely legal question, it is “fit for judicial decision.” RACER, 10 F.4th at 100.
And for the reasons discussed above, Plaintiffs “would suffer hardship if required
to wait” any longer, id. at 101, given the “present detriment” to their purported
First Amendment rights, Simmonds, 326 F.3d at 360.
B. Abstention
We next address whether the district court should have abstained “in light
of principles of comity, equity, and federalism.” Courthouse News Serv. v. Corsones,
131 F.4th 59, 77 (2d Cir. 2025); see also Mitchum v. Foster, 407 U.S. 225, 243 (1972).
In the main, “a federal court’s ‘obligation’ to hear and decide a case is ‘virtually
unflagging.’” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (quoting Colo.
River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). Even as the
Supreme Court has “carefully defined” the rare occasions when “abstention is
39 permissible,” it has cautioned that abstention “remains the exception, not the
rule.” NOPSI, 491 U.S. at 359 (citation modified).
The State urges that one such exception—O’Shea abstention—militates in
favor of dismissal to avoid a federal court unduly interfering with the State’s
attorney disciplinary regime. As we have previously explained, “[i]n O’Shea, the
plaintiffs sought to enjoin state court judges from carrying out allegedly
unconstitutional policies and practices relating to bond setting, sentencing, and
jury fees.” DRNY, 916 F.3d at 134 (citing O’Shea, 414 U.S. at 491–92). However,
the Supreme Court found that there was no adequate “basis for equitable relief,”
pointing to the principles undergirding its decision in Younger v. Harris, 401 U.S.
37 (1971), wherein the Court held that federal courts should not interfere in
pending state criminal prosecutions. See O’Shea, 414 U.S. at 677–78 (citing Younger,
401 U.S. at 43–44). Expanding from Younger’s focus on a specific, pending state
criminal prosecution to a state court’s broader practices, the Supreme Court held
that “courts must abstain where failure to do so would result in ‘an ongoing
federal audit of state criminal proceedings’” more generally. DRNY, 916 F.3d at
134 (quoting O’Shea, 414 U.S. at 500).
Since its pronouncement, O’Shea abstention has been extended to civil cases
40 and potentially implicated whenever an equitable remedy might affect “the
operations of state courts.” Id. Yet, we have recently clarified that when the
remedy sought is a “bright-line rule,” the “mere possibility that a finding of
unconstitutionality of the originally challenged [s]tate procedure may be followed
by a further challenge to the subsequently developed, ameliorative [s]tate
procedure does not make it an ‘ongoing federal audit.’” Courthouse News Serv., 131
F.4th at 77 (quoting O’Shea, 414 U.S. at 500).
The State asserts that the district court’s order impermissibly alters the
State’s disciplinary scheme in at least three ways: 1) by requiring on-the-record
findings before private discipline can be imposed; 2) by subjecting any on-the-
record findings to potential further litigation in federal courts; and 3) by forcing a
revamp of the Second Department’s recordkeeping protocols. We are
unpersuaded that these consequences require O’Shea abstention, primarily
because Plaintiffs sought—and received—declaratory relief that permits the State
to structure its attorney disciplinary regime as it pleases to conform to the First
Amendment.
To be sure, whether the relief ordered is declaratory or injunctive is not
dispositive of whether O’Shea abstention is applicable. See Kaufman v. Kaye, 466
41 F.3d 83, 86 (2d Cir. 2006) (finding that O’Shea abstention is warranted even if the
plaintiff “seeks only a declaratory judgment that the non-transparent, non-random
assignment procedures in the Second Department violate” constitutional
guarantees of due process). But the abstention inquiry takes into consideration the
specific right that a plaintiff asserts. See Hartford Courant Co. v. Pellegrino, 380 F.3d
83, 100 (2d Cir. 2004) (“[T]he weight of the First Amendment issues involved
counsels against abstaining.”); see also Courthouse New Serv., 131 F.4th at 78
(“Another factor weighing against abstention here is the significance of the First
Amendment right at issue.”).
Here, the State’s contention that the declaratory relief alters the “substantive
criteria” the Committee must consider before imposing private discipline because
of its requirement that the Committee must make specific findings supporting
confidentiality in order to seal proceedings and records is inapposite.15
15 CRC and the Law Professors argue that we should not consider this argument at all because it was not explicitly raised before the district court. Ordinarily, “an appellate court will not consider an issue raised for the first time on appeal.” Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006) (quoting Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994)). But on our review, the State appears to have raised the argument that O’Shea abstention may be required. See Mem. Supp. Cross-Mot. for Summ. J. at 2–3, 21– 24, Civil Rights Corps v. LaSalle, No. 21-cv-9128, 741 F. Supp. 3d 112 (S.D.N.Y. 2024), Dkt. No. 199 (arguing that the requested relief would “interfere with the Appellate Divisions’ prerogative to regulate attorney conduct”). The specific contention that the declaratory relief alters the substance of the available dispositions is “fairly encompassed within 42 Appellant’s Br. at 45. Any change in the discipline options available to the State
only reflects that its current regime of imposing private dispositions, without
added justification, would be unconstitutional if a First Amendment right of access
attaches. In other words, there is no change in the discipline options available to
the State, but only to the findings required to sustain confidentiality of the
proceedings. In its order of declaratory relief, the district court stated that any
“confidential” disposition must be justified by “specific, on-the-record findings”
regarding “higher values” secured by non-disclosure and narrow tailoring. Civil
Rights Corps., 741 F. Supp. 3d at 172. The district court could not have devised a
laxer remedy because the Supreme Court has held that, when “a qualified First
Amendment right of access attaches, . . . the proceedings cannot be closed unless
specific, on the record findings are made demonstrating that ‘closure is essential
to preserve higher values and is narrowly tailored to serve that interest.’” Press-
Enterprise II, 478 U.S. at 13-14 (quoting Press-Enterprise I, 464 U.S. at 510). If O’Shea
abstention were obligatory whenever a state insisted that its regime for private
adjudication would be transformed once certain outcomes are no longer
the . . . broader argument” raised before the district court because it is not a “meaningfully distinct” contention. In re TransCare Corp., 81 F.4th 37, 58 (2d Cir. 2023). 43 confidential, “federal courts could rarely consider constitutional challenges to
[s]tate procedures” under the First Amendment. Courthouse News Serv., 131 F.4th
at 77.
The bright-line rule sought by the Plaintiffs distinguishes this case from both
the relief sought in O’Shea itself and other forms of equitable relief that the
Supreme Court has found problematic in light of the “delicate issues of federal-
state relationships” that sometimes require abstention. Rizzo v. Goode, 423 U.S. 362,
380 (1976) (quoting Mayor of Phila. v. Educ. Equal League, 415 U.S. 605, 615 (1974)).
In O’Shea, the Supreme Court recognized that the desired injunction would
implicate federal court oversight in “specific events that might take place in the
course of future state [adjudications],” from bond setting to sentencing, because
the claimants there argued that state court judges had purportedly violated the
Constitution by engaging in, inter alia, racial discrimination in those proceedings.
414 U.S. at 500. Unlike the CRC and the Law Professors’ lawsuit, the Supreme
Court noted that the claimants in O’Shea “d[id] not seek to strike down a single
state statute, either on its face or as applied,” but rather to impose a de facto federal
monitorship. Id. (emphasis added). As such, the Plaintiffs’ challenge here—to a
“single state statute,” id.—is meaningfully distinct. The declaratory relief Plaintiffs
44 seek does not impose ongoing intrusion into adjudications (e.g., by altering
evidentiary standards or instituting review of substantive outcomes) but instead
would simply apply a presumption of public access to the Grievance Complaints.
Our decision in Disability Rights New York v. New York provides another
useful foil. There, the plaintiff brought a challenge attacking a state statute
governing guardianship proceedings as unconstitutional writ large and requested,
alongside sweeping injunctive relief which would have “affect[ed] the manner in
which all [state guardianship] proceedings—present and future—are conducted,”
a declaration that the statute violates “the Constitution, the [Americans with
Disabilities Act], and the Rehabilitation Act.” DRNY, 916 F.3d at 132, 135.
Although the State cites this precedent for support, the State misunderstands why
we affirmed that district court’s exercise of abstention even as to the declaratory
relief. We did so because the declaration requested would “inevitably set up the
precise basis for future intervention condemned in O’Shea.” Id. at 137 (quoting Miles
v. Wesley, 801 F.3d 1060, 1063–64 (9th Cir. 2015)). In other words, if the intervention
“would amount to ‘nothing less than an ongoing federal audit of state
proceedings,’” a district court should abstain. Id. at 134 (alteration adopted)
(quoting O’Shea, 414 U.S. at 500). But Plaintiffs’ declaration in this case would not
45 “unreasonably intrude upon the [state] judiciary’s autonomy or risk the sort of
‘monitoring of the operation of state court functions’” that O’Shea prohibits.
Courthouse News Serv., 131 F.4th at 77–78 (quoting O’Shea, 414 U.S. at 501). The
State would retain its procedures for evaluating and determining how to dispose
of the Grievance Complaints and would still retain discretion to impose private
discipline against the implicated state prosecutors if it can meet the constitutional
requirements for confidentiality.
It is of no moment that the declaration might invite “further challenge to the
subsequently developed, ameliorative” grievance procedures or the State’s
specific, on-the-record findings for privacy in a particular disciplinary matter. Id.
at 78; see also Courthouse News Serv. v Planet, 750 F.3d 776, 792 (9th Cir. 2014)
(explaining, in the context of determining that O’Shea abstention does not apply to
an injunction requiring same-day access to civil complaints under the First
Amendment, “that some additional litigation may later arise to enforce an
injunction does not itself justify abstaining from deciding a constitutional claim”).
Despite the State’s fear of opening the floodgates, Plaintiffs have asked only that
Section 90(10) be declared unconstitutional as applied to them, not that wholesale
reforms be imposed by a federal court sitting in equity.
46 We recognize that the State may incur costs associated with, for instance, its
recordkeeping system to ensure compliance with the First Amendment, but the
economics cannot override the Constitution. The factual record belies any notion
that it would be unfeasible or unduly burdensome to make dispositions accessible,
given that they are held and accessible by the Second Department and its staff in
perpetuity. Moreover, the declaration that Plaintiffs sought and obtained does not
tie the State’s hands to a designated or onerous method of compliance. Under
these circumstances, it cannot be said that the district court erred by exercising its
jurisdiction over the Plaintiffs’ Fourth Claim.
III. First Amendment Right of Access
Reaching the merits, we agree with the district court, on de novo review, that
a presumptive First Amendment right of access attaches to both Second
Department proceedings, including all documents and records reasonably
implicated in understanding those proceedings, and the Committee’s dispositions.
We start with the applicable law before turning to each of those stages in the order
of the district court’s discussion.
The First Amendment “secure[s] to the public and to the press a right of
access to [certain] civil proceedings.” Westmoreland v. Columbia Broad. Sys., Inc., 752
47 F.2d 16, 23 (2d Cir. 1984). Public scrutiny “enhances the quality and safeguards
the integrity of the factfinding process,” “fosters an appearance of fairness, thereby
heightening public respect for the judicial process,” and “permits the public to
participate in and serve as a check upon the judicial process—an essential
component in our structure of self-government.” Globe Newspaper Co. v. Superior
Ct. for Norfolk Cnty., 457 U.S. 596, 606 (1982). But not all proceedings are subject to
a First Amendment right of access. See, e.g., In re N.Y. Times Co. to Unseal Wiretap
& Search Warrant Materials, 577 F.3d 401, 410 n.4 (2d Cir. 2009) (“Nonpublic
proceedings are common throughout the judiciary.”).
There is a “two-step framework” for evaluating whether a First Amendment
right of access applies to a “document or proceeding.” Courthouse News Serv., 131
F.4th at 66. At the first step, we apply the experience-and-logic test. See Press-
Enterprise II, 478 U.S. at 9. “Under this test, a court must ask ‘whether the place
and process have historically been open to the press and general public’ (the
experience prong) and ‘whether public access plays a significant positive role in
the functioning of the particular process in question’ (the logic prong).” Courthouse
News Serv., 131 F.4th at 66–67 (quoting Press-Enterprise II, 478 U.S. at 8). If both
elements are satisfied, then a “qualified, presumptive First Amendment right of
48 public access” attaches, id. at 67, and the presumption “applies to judicial
documents that are ‘a necessary corollary of the capacity to attend the relevant
proceedings.’” United States v. Greenwood, 145 F.4th 248, 255 (2d Cir. 2025) (quoting
Lugosch, 435 F.3d at 120).
At the second step, a court considers whether the proponent of closure can
overcome the presumption by “establish[ing] through ‘specific, on the record
findings that closure is essential to preserve higher values and is narrowly
tailored.’” Courthouse News Serv., 131 F.4th at 67 (alteration adopted) (quoting
Press-Enterprise II, 478 U.S. at 13–14). Because the State does not claim that it has
satisfied the second step and only argues that no First Amendment presumption
applies, we focus our attention on the experience-and-logic test. 16
A. Second Department Proceedings
The State contends that neither experience nor logic requires opening
16 We have recognized that there also exists a distinct “qualified common law ‘right to inspect and copy public records and documents,’” In re N.Y. Times Co., 577 F.3d at 405 (quoting Nixon v. Warner Commc’ns, 435 U.S. 589, 597 (1978))—especially “judicial documents,” Lugosch, 435 F.3d at 119—but Plaintiffs’ Fourth Claim did not seek access to the relevant proceedings or dispositions via a common law right. See also Newsday LLC v. County of Nassau, 730 F.3d 156, 163 (2d Cir. 2013) (noting that the common law and First Amendment provide “two related but distinct presumptions in favor of public access to court proceedings and records”). Therefore, we address only whether the First Amendment provides a qualified right of access. 49 Second Department proceedings to the public. As to experience, given the sparsity
of its historical evidence and imprecision of its analogues, the State contends that
attorney regulation under codes of conduct had, by at least the 1970s, included
“formal disciplinary proceedings in private” in most states, severing any tradition
of openness. Appellant’s Br. at 68. And as to logic, the State argues that the district
court misapprehended the prudence of private proceedings, which encourage
witness participation and avoid unfounded accusations against attorneys.
Starting with experience, we find that the robust history of open disciplinary
proceedings, wherein an attorney may be suspended or disbarred by a court
sitting in equity, strongly supports a presumptive First Amendment right of
access. New York first instituted secrecy for Second Department proceedings with
the passage of Section 90(10) in 1945. But prior to then, attorney discipline
proceedings “ha[d] historically been open to the press and general public”—
dating all the way back to common-law England. Press-Enterprise II, 478 U.S. at 8.
England enacted the “first significant regulation of the . . . legal profession” in
1275, and from that time on, attorney misconduct was often punished in local (and
open) court. Jonathan Rose, The Legal Profession in Medieval England, 48 Syracuse
L. Rev. 1, 49 (1998); see also id. at 60 n.260 (collecting dozens of court cases in 1200s–
50 1300s England adjudicating attorney misconduct).
Attorney discipline in America’s early days largely mirrored the practices of
English courts. See Ex parte Burr, 4 F. Cas. 791, 793 (C.C.D.D.C. 1823) (describing
the power of courts to disbar attorneys as stemming from “the common law of
England”). So, as it was in England, disbarment in America largely took place in
public court proceedings. In the nineteenth century, “[a] typical disbarment
proceeding began with charges of misconduct contained in an order to show cause
issued to the lawyer,” to which “the lawyer was required to respond . . . in the
usual way of a civil litigant and the petitioning party was required to prove its case
with evidence.” Charles W. Wolfram, Toward a History of the Legalization of
American Legal Ethics, 8 U. Chi. L. Sch. Roundtable 469, 474–75 (2001). In this way,
a disbarment proceeding “was generally conducted as an equity suit or more
specifically as a contempt proceeding.” Id. And these courthouse contempt
proceedings, open as they were, often captured the public’s attention. Many
contemporary newspapers “report[ed] the filing of charges against lawyers,” and
“[d]isciplinary proceedings were colorfully reported.” Leslie C. Levin, The Case for
Less Secrecy in Lawyer Discipline, 20 Geo. J. Legal Ethics 1, 12–13 (2007); see also
William H. Gale Disbarred, N.Y. Times (Mar. 13, 1877); The Disbarment Case: The
51 Defense Injects a Demurrer that Puts it Off, L.A. Times (Oct. 14, 1888) (reporting that
“[a] large crowd hung around the . . . [c]ourt room yesterday in the expectation of
seeing a good legal fight” in a disbarment proceeding).
The same was true of attorney discipline proceedings in New York’s early
days. It is undisputed that “petitions or complaints charging professional
misconduct of an attorney were presented publicly to the General Term of the
Supreme Court in New York and adjudicated as equity suits or contempt
proceedings.” J. App’x at 958. In fact, the legislature “directed that local district
attorneys, when so designated by the Appellate Division, had a duty to prosecute
all proceedings for the removal or suspension of attorneys.” Id. at 959 (citation
modified). In the words of the New York Court of Appeals, “[t]he [disbarment]
proceeding is of a public nature and quasi criminal.” In re Kelly, 59 N.Y. 595, 596
(1875). Such actions were not limited to initiation by deputized officials; instead,
private parties could also tap the judiciary’s equitable powers to seek disbarment
of an attorney. See, e.g., Saxton v. Stowell, 11 Paige Ch. 526, 526–27 (N.Y. Ch. 1845)
(discussing that a “complainant” must first file “written charges against the
solicitor who is accused of malpractice” in order for the solicitor to be “stricken
from the rolls”). In light of this 700-year-plus tradition of openness, the force of
52 the First Amendment cannot be evaded on the basis that “disbarment . . . [is] now
imposed through a separate process” (e.g., that previously public adjudications
are now nested in “agencies”). Appellant’s Br. at 67–68.
The State points to the advent of codes of conduct and the rise of state bar
associations as a juncture at which time the process for attorney regulation
transformed into a different category of proceeding, “rending the former types of
proceedings poor historical referents.” Appellant’s Br. at 68. But our experience
analysis “focus[es] not on formalistic descriptions of the government proceeding”
to which access is sought, “but on the kind of work the proceeding actually does.”
NYCTA, 684 F.3d at 299. The type of adjudicative work that Second Department
formal proceedings engage in today—i.e., imposing weighty sanctions after an
adversarial presentation of evidence and argument—is a “direct continuation” of
a tradition of removal or suspension of attorneys by judges exercising their
“plenary authority” in “open court.” Civil Rights Corps, 741 F. Supp. 3d at 156–57.
Furthermore, although the experience inquiry focuses on whether there is a
“vital tradition of public [access] to particular proceedings or information,”
potentially harkening back to English common law, the experience prong does not
require a wholly unbroken and uniform nationwide practice. Richmond
53 Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring in the
judgment); see also Press-Enterprise II, 478 U.S. at 10–11 (acknowledging disparate
treatment of preliminary hearings by states yet finding a presumptive First
Amendment right of access). As pertinent here, “[p]rior to the last century, lawyer
discipline was conducted in public in the United States and in England.” Levin,
The Case for Less Secrecy in Lawyer Discipline, supra, at 10. In the 1870s, bar
associations began to play an increasingly critical role in lawyer discipline,
functioning first as investigators, and by the 1930s, “courts or legislatures in many
states had conferred on bar associations express authority . . . to impose certain
types of discipline sanctions.” Id. at 14. However, the State concedes that only
four states today (including New York) maintain the confidentiality of disciplinary
proceedings until formal charges are sustained; most states maintain
confidentiality “only until a finding of probable cause.” Appellant’s Br. at 11.
Accordingly, the last decades of unsettled confidentiality regimes do not override
the preceding centuries of open proceedings.
The logic of public access to the Second Department’s attorney disciplinary
proceedings confirms what history demonstrates. “[W]e have repeatedly found
public censure or reprimand to be an appropriate and valuable ‘corrective
54 measure’ in attorney-misconduct cases, ‘in order to protect the public, other
attorneys and litigants, the Court, and the administration of justice.’” In re
Demetriades, 58 F.4th 37, 46 (2d Cir. 2023) (quoting In re Jaffe, 585 F.3d 118, 121 (2d
Cir. 2009)). Even if a Second Department proceeding does not ultimately lead to
the imposition of public discipline, “the bright light cast upon the judicial process
by public observation diminishes the possibilities for injustice, incompetence,
perjury, and fraud,” while fortifying the public’s faith in the process. United States
v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (citation modified).
We are unconvinced by the consternation of the State, as well as that of its
amicus the New York State Bar Association, regarding the practical consequences
of a presumptive right of access. Because Second Department proceedings require
a finding of probable cause prior to initiation, see 22 N.Y.C.R.R. § 1240.7(d)(2)(vi),
unsubstantiated accusations are unlikely to filter through. Moreover, if any
proceeding implicates sensitive information, the concerning portions could be
closed if the State is able to justify the closure in terms of the higher values served
and narrow tailoring. The presumptive right is not an inexorable command nor
an insurmountable hurdle. Because we find that the right attaches to Second
Department proceedings generally, the right also encompasses all documents that
55 are necessary to effectuate that right. See Greenwood, 145 F.4th at 255.
B. Grievance Committee Dispositions
The work done by the Committee differs in significant, meaningful ways
from that of the Second Department. Whereas proceedings in the Second
Department, prosecuted by the Chief Attorney against the respondent attorney,
have, as we explained, the relevant indicia of equitable attorney misconduct
proceedings that have historically been open to the public, the Committee operates
in an investigatory, prosecutorial, and adjudicative capacity. However, Plaintiffs
have narrowed their claim only to the Committee’s ultimate resolution of the
Grievance Complaints. Therefore, we first need to delineate what “kind of work”
the Committee does when issuing dispositions and then determine if experience
and logic suggest that a qualified First Amendment right of access attaches to that
specific function. NYCTA, 684 F.3d at 299.
The State contends that because the Committee is not an adjudicator of
grievance complaints, experience and logic do not compel a right of access. In its
view, the Committee is a nonneutral investigator and prosecutor that works to
enforce the Rules. To the State, the Committee and the Chief Attorney are
functional equivalents for the First Amendment’s inquiry, since both can enter
56 final dispositions such as dismissals that effectively resolve a complaint, and
because the district court found that the Chief Attorney’s work does not warrant
public access, neither should the Committee’s. On experience, the State urges us
to consider the work done by the Committee, which cannot suspend or disbar any
attorney on its own, to be akin to that of prosecutors and grand juries, which have
been permitted to operate away from the public eye. See, e.g., In re Grand Jury
Subpoena, 103 F.3d 234, 242–43 (2d Cir. 1996) (concluding that grand jury
proceedings may be closed without violating the First Amendment). As for logic,
the State warns that opening the Committee’s dispositions would prematurely
tarnish an attorney’s reputation, expose sensitive information, erase the option of
private discipline, and undermine the Committee’s investigatory ability by
dissuading witnesses.
In response, Plaintiffs emphasize that their request is limited only to the
results of the Committee’s adjudication of the twenty-one Grievance Complaints,
not internal reports or any investigatory work product. When the Committee
issues a disposition, “it sits as a neutral body to make authoritative determinations
on accusations” that are often “the ‘last and most important step in nearly every
proceeding’” regarding attorney misconduct. Appellees’ Br. at 60 (quoting Civil
57 Rights Corps, 741 F. Supp. 3d at 164). Because the Committee is delegated authority
to resolve attorney misconduct by the Second Department, the root “historical
antecedent” remains the “public practice of attorney discipline.” Id. at 61.
Moreover, grand juries and prosecutors are inadequate comparators because the
Committee issues a “final decision, on the merits and after an adversary
proceeding.” Id. at 62. Plaintiffs tailor their argument regarding logic to the
Grievance Complaints, noting that how state prosecutors are regulated (or not) is
of great public interest, and none of the State’s rationales are applicable here
because the Grievance Complaints were predicated on public information, with
witnesses and victims already known.
So, as before the district court, “[t]he crux of the parties’ dispute is how to
characterize what kind of government ‘process’ the Committee carries out.” Civil
Rights Corps, 741 F. Supp. 3d at 163. While the Committee certainly has
investigatory and prosecutorial functions, we find that the Committee’s
disposition of these Grievance Complaints in particular does not implicate those
roles, but rather its function as an adjudicator operating under the Second
Department’s mandate—and that function relates back to the historically public
attorney misconduct proceedings discussed earlier.
58 As the State notes, the Plaintiffs’ exercise of labeling the Committee’s
dispositions as “judicial” does not operate as “some talisman” that triggers
presumptive access under the First Amendment. Butterworth v. Smith, 494 U.S.
624, 630 (1990) (quoting United States v. Dionisio, 410 U.S. 1, 11 (1973)); see Press-
Enterprise II, 478 U.S. at 7 (“[T]he First Amendment question cannot be resolved
solely on the label we give the event.”). Otherwise, various phases of the judicial
process—such as preindictment proceedings—would be subject to the right of
access. See, e.g., Butterworth, 494 U.S. at 630 (discussing “grand jury secrecy”); In
re N.Y. Times Co., 577 F.3d at 410 & n.4 (discussing private wiretap applications
and cataloging nonpublic judicial proceedings). Instead, we focus on the
Committee’s function here—the adjudicative work required to decide these
twenty-one Grievance Complaints—to ascertain the appropriate historical
analogue for the experience prong’s focus on a “history of openness.” Lugosch, 435
F.3d at 120 (quoting Pellegrino, 380 F.3d at 92).
As detailed above, we disagree with the State that the emergence of quasi-
agency adjudication of attorney misconduct, either through state bar associations
or the State’s judiciary subcomponents, provides the appropriate starting point of
the historical inquiry. See Appellant’s Br. at 57 (noting that “the preliminary work
59 of attorney grievance committees has been private since their inception” (emphasis
added)). To accept this premise, we would fall into the trap of formalism that we
have previously rejected, especially since the State itself severed the otherwise-
unbroken tradition of public misconduct proceedings by relocating attorney
discipline into these committees in the first place. To permit the State to
“immuniz[e] government proceedings from public scrutiny by placing them in
institutions the Framers could not have imagined” would unravel the First
Amendment’s protections of “access to public participation and to government
accountability.” NYCTA, 684 F.3d at 299.
The record bears out that the Committee is an outgrowth of the historically
public adjudication of attorney discipline. In her deposition, Chief Attorney
Kearse agreed that, “[i]n general,” the Committee “sits in judgment and it renders
a ruling after it hears from both sides.” J. App’x at 418–19. The Committee
disposes of a complaint, by majority vote, after receiving a developed factual
record and considering the positions of both sides. Even if the Committee cannot
suspend or disbar attorneys on its own, its actions—unlike that of the State’s
preferred comparisons, the grand jury or the prosecutor—conclusively decide
most matters that have passed the Chief Attorney and staff’s initial screening. And
60 its dispositions—such as letters of advisement or written admonitions, which the
Chief Attorney cannot authorize alone—are permanent records that follow an
attorney’s career. 17 Compare 22 N.Y.C.R.R. § 1240.7(d)(1) (listing permissible
“dispositions” available to the Chief Attorney, which are limited to a
“declin[ation] to investigate” or “refer[ral]” to an alternative forum, neither of
which involve a finding of misconduct), with id. § 1240.7(d)(2) (listing permissible
dispositions available to the Committee, including situations wherein the
Committee “finds” that “the respondent has engaged in professional
misconduct”). Moreover, the Committee’s dispositions are final decisions
permanently kept on file in the Second Department that may be considered in
future disciplinary proceedings, much like a final state court judgment (and unlike
a prosecutor’s recommendation). Cf. Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir.
1958) (calling the “acts” of “the Grievance Committee of the City Bar
Association . . . quasi judicial”). Therefore, in all material respects, the
Committee’s dispositions—not its preparatory or internal work—are part of the
17 The Committee’s dispositions are often the last step in the attorney discipline process. For example, in 2022, the Committee issued over two hundred letters of advisement or written admonitions and dismissed nearly a thousand complaints for failure to state a violation. Only 15 matters were referred to the Second Department. 61 same historical arc of traditionally open-to-the-public attorney disciplinary
proceedings to which we have earlier explained the Second Department’s formal
proceedings belong.
Logic reinforces our assessment of experience. Presumptively publicizing
the Committee’s dispositions would not unduly harm an attorney’s reputation
given the gatekeeping function of the Chief Attorney. As the Plaintiffs’ amicus the
New York Media Coalition 18 points out, many complaints are screened out by the
Chief Attorney, 19 and those dispositions are not presumptively public under the
district court’s order of declaratory relief. We are also unconvinced that avoiding
disclosure of witnesses or sensitive information warrants overriding the
presumption writ large, seeing as any specific redactions could be justified by
higher values and narrow tailoring on a case-by-case basis. See Press-Enterprise II,
478 U.S. at 13–14.
18 The New York Media Coalition consists of Advance Publications, Inc., The Associated Press, Daily News, L.P., Dow Jones & Company, Gannett Co., Inc., Hearst Corporation, New York Newspaper Publishers Association, New York Press Association, The New York Times Corporation, Newsday LLC, and Pro Publica, Inc.
19 According to the public reporting cited by the New York Media Coalition, although the Second Department’s breakdown does not share the exact number, the Appellate Division’s First Judicial Department reported that, in 2023, its Chief Attorney disposed of over two thousand complaints, whereas its Grievance Committee only adjudicated slightly over nine hundred complaints. 62 To be sure, not all dispositions, such as diversions, involve a finding of
misconduct by the Committee, but those dispositions would not reasonably invite
the intense public scrutiny the State and the New York State Bar Association decry.
We also agree with the State that a presumptive First Amendment right of access
would inhibit the Committee’s ability to freely utilize private discipline, but those
forms of lesser action or “inaction” still warrant public scrutiny to ensure the
public’s “confidence in the orderly administration of justice.” United States v. Erie
County, 763 F.3d 235, 240 (2d Cir. 2014). An interest in the faithful administration
of justice is heightened when the misconduct of attorneys is at stake, especially so
when the purported misconduct involves state prosecutors who may be subject to
election or appointment and operate under the aegis of the State. See, e.g.,
Richmond Newspapers, 448 U.S. at 575 (“Plainly it would be difficult to single out
any aspect of government of higher concern and importance to the people than the
manner in which criminal trials are conducted[.]”).
* * *
Both the State and the Plaintiffs raise weighty interests that the Court does
not consider lightly. But applying afresh the First Amendment framework that
governs Plaintiffs’ as-applied claim, we hold that the district court did not err in
63 granting declaratory relief that would presumptively permit access to the
Committee’s dispositions of, and the Second Department’s proceedings and
documents regarding, the twenty-one Grievance Complaints against the former
state prosecutors. To be sure, the presumption is only just that—it may be
overcome if the State can sufficiently justify closure, in whole or in part, of any
component of the relevant dispositions or proceedings. Yet, the State raises no
argument on that ground and so we need not assess any purported higher values
or the extent of narrow tailoring.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
Civil Rights Corps v. LaSalle (Civil Rights Corps v. LaSalle) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.