Civil Rights Corps v. LaSalle

majority opinion

24-2251-cv

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,

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, PlaintiffsAppellees’ 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 experienceand-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.

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

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, PlaintiffsAppellees’ 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 experience4

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 PlaintiffsAppellees, 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

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

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

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

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,

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.

“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

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

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.

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

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

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.

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 goodcause 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

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.

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, thenCorporation 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.

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.

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

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.

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

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

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.

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

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

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.”).

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.

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

The district court had earlier held, in its ruling on the State’s motion to dismiss, that the

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.

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

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

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

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

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

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.

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

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

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

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

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

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.

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.

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.

(“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 rightof-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

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 asapplied 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)).

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.

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.

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).

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

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

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-therecord 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

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

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

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.’” PressEnterprise 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).

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 federalstate 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

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

“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.

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

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 PressEnterprise 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

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

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.

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–

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

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

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

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

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

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

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

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.

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 PressEnterprise 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 quasiagency 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

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 otherwiseunbroken 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

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

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.

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.

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.

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.

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

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

Authorities cited

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