NY State Senate Bill 2021-S9292

Senate Bill S9292

2021-2022 Legislative Session

Relates to making technical corrections to ensure gender neutrality for the admission to practice law and preventing required disclosure of prior interaction with law enforcement or the criminal justice system

download bill text pdf

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 20, 2022	print number 9292a
May 20, 2022	amend and recommit to judiciary
May 12, 2022	referred to judiciary

Bill Amendments

Original

A (Active)

2021-S9292 - Details

Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd RR9401, 9403, 9404, 9405 & 9406, CPLR
Versions Introduced in 2023-2024 Legislative Session:: S1646

2021-S9292 - Summary

Relates to making technical corrections to ensure gender neutrality for the admission to practice law and preventing the character fitness questionnaire from inquiring into an applicant's prior interaction with law enforcement or the criminal justice system under certain circumstances.

2021-S9292 - Sponsor Memo

                                 
BILL NUMBER: S9292

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to making
technical corrections to ensure gender neutrality for the admission to
practice law and preventing any required disclosure of prior interaction
with law enforcement or the criminal justice system under certain
circumstances

 
PURPOSE OF BILL:

To prohibit unnecessary and discriminatory questioning of bar appli-
cants.

 
SUMMARY OF PROVISIONS:

Sections 1, 2, 4, and 5 amend rules 9401, 9402, 9405, and 9406 of the
CPLR to make them gender neutral.

Section 3 amends rule 9404 of the CPLR to make it gender neutral and to

prohibit the questioning of applicants about interactions with law
enforcement or the criminal justice system if such interaction was (i)
before the applicant turned 18, (ii) did not result in a conviction, or
(iii) resulted in a conviction which is now sealed.

Section 6 provides the effective date.

 
JUSTIFICATION:

New York State's application for admission to the Bar must be revised to
eliminate impermissible questions about criminal justice involvement so
that it conforms to the requirements for licensing agencies set forth in
the New York Human Rights Law and Family Court Act.

The four departments of the Appellate Division of the New York Supreme
Court, pursuant to the authority granted in C.P.L.R. 9404, use question-
naires to screen the character and fitness of applicants seeking admis-
sion to practice law in New York State. Criminal justice involvement
must be disclosed in response to several questions, including Question
26, which currently asks:

"Have you ever, either as an adult or a juvenile, been cited, ticketed,
arrested, taken into custody, charged with, indicted, convicted or tried
for, or pleaded guilty to, the commission of any felony or misdemeanor
or the violation of any law, or been the subject of any juvenile delin-
quency or youthful offender proceeding?  Traffic violations that
occurred more than ten years before the filing of this application need
not be reported, except alcohol or drug-related traffic violations,
which must be reported in all cases, irrespective of when they occurred.
Do not report parking violations."

These questions are inconsistent with Section 296(16) of the New York
Human Rights Law, which provides, "It shall be an unlawful discriminato-
ry practice, unless specifically required or permitted by statute . ..
for any person, . . . including the state and any political subdivision
thereof . .. to make any inquiry about, whether in any form of applica-
tion or otherwise, . . . any arrest or criminal accusation of such indi-
vidual not then pending against that individual which was followed by a
termination ... in favor of such individual .. . or by a youthful offen-
der adjudication . . ." The bar application questions are also improper
under Section 380.1 of the New York Family Court Act which provides,
"Except where specifically required by statute, no person shall be
required to divulge information pertaining to the arrest of the (juve-
nile) respondent or any subsequent proceeding under this article."
Neither the Human Rights Law nor the Family Court Act exempts from the
prohibition against criminal record inquiries any of the administrative
agents of the New York Supreme Court who handle the licensing of attor-
neys.

Requiring disclosure of criminal justice involvement on the bar applica-
tion has an adverse impact on the representation of people of color in
New York law schools, which require disclosure on their application
forms to conform to the bar application's required disclosure. According
toa recent New York State Bar Association Report, criminal record
screening has a chilling effect on college and law school applicants
from communities of color due to the greater likelihood that they will
be arrested, and if arrested convicted, than their similarly-situated
white counterparts. The Report noted with concern that of the approxi-
mately 4,500 students admitted in 2021 to the 15 law schools in New
York, fewer than 400 identified as African American, Native American,
Alaskan or Pacific Islander. This disturbing under-representation of
students of color in law schools is reflected in the well-documented
under-representation of people of color among lawyers admitted to prac-
tice in New York.

The Report also noted that criminal record screening does not protect
the public from lawyers who go on to violate the ethical requirements of
the profession. The most prominent academic study of the effect of crim-
inal record screening in Connecticut on the rate of lawyer discipline
shows that such screening has no statistically-significant protective
effect for the members of the public who seek legal services. That
conclusion has not been contradicted by any data or study from the New
York Office of Court Administration.

Consistent with the findings and recommendations of the NYSBA, this bill
would conform the bar application to the requirements of current New
York law by eliminating questions that require disclosure of arrests
that are not pending at the time of application which had terminated in
the arrestee's favor, adjournments in contemplation of dismissal (which
are tantamount to dismissals), sealed convictions, juvenile delinquency
proceedings, and youthful offender adjudications. The bill will not
affect questions concerning convictions of adult offenders that have not
been sealed.

If adopted, New York would become a leader, along with California, in
eliminating over-broad and burdensome criminal record screening as a
barrier to aspiring lawyers from poor and under-represented communities.

 
LEGISLATIVE HISTORY:

New bill, 2022.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.
 
EFFECTIVE DATE:
On the sixtieth day after it becomes a law.

2021-S9292 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9292
 
                             I N  S E N A T E
 
                               May 12, 2022
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary
 
 AN ACT to amend the civil practice law and rules, in relation to  making
   technical corrections to ensure gender neutrality for the admission to
   practice  law  and  preventing any required disclosure of prior inter-
   action with law enforcement  or  the  criminal  justice  system  under
   certain circumstances
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Rule 9401 of the civil practice law and rules is amended to
 read as follows:
   Rule 9401. Committee.  The appellate division in each judicial depart-
 ment shall appoint a committee of not less than three practicing lawyers
 for each judicial district within the department,  for  the  purpose  of
 investigating the character and fitness of every applicant for admission
 to  practice  as  an attorney and counselor at law in the courts of this
 state. Each member  of  such  committee  shall  serve  until  [his]  THE
 MEMBER'S  death,  resignation  or  the appointment of [his] THE MEMBER'S
 successor. A lawyer who has been or who shall be appointed a  member  of
 the  committee for one district may be appointed a member of the commit-
 tee for another district within the same department.
   § 2. The opening paragraph and subdivision 1 of rule 9403 of the civil
 practice law and rules, as amended by chapter 226 of the laws  of  1985,
 are amended to read as follows:
   Notwithstanding  rule  9402, any application for admission to practice
 pending before a committee, may be referred to the committee for another
 judicial district in the same or another department by order  or  direc-
 tion  of  the presiding justice of the appellate division of the depart-
 ment embracing the district in which the application  is  pending.  Such
 order  or  direction  may  be  made only upon the written request of the
 [chairman] CHAIRPERSON or acting [chairman] CHAIRPERSON of the committee
 before which the application is pending and only upon [his]  THE  CHAIR-
 PERSON OR ACTING CHAIRPERSON'S written certification either:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD15871-01-2

 S. 9292                             2
 
   1.  that  the applicant, since [he] THEY applied to take the bar exam-
 ination or to dispense with such examination or since [he] THEY  applied
 on  motion  to  be  admitted to practice, has changed [his] THEIR actual
 residence to such other judicial district in the same or  other  depart-
 ment, or, if not a resident of the state, has acquired full-time employ-
 ment  in  or  changed  [his] THEIR place of full-time employment to such
 other judicial district in the same or other department; or
   § 3. Rule 9404 of the civil practice law  and  rules,  as  amended  by
 judicial  conference  proposal number 7 for the year 1973, is amended to
 read as follows:
   Rule 9404. Certificate of character and  fitness.    Unless  otherwise
 ordered  by the appellate division, no person shall be admitted to prac-
 tice without a certificate from the proper committee that it  has  care-
 fully  investigated the character and fitness of the applicant and that,
 in such respects, [he] THE APPLICANT is entitled to admission. To enable
 the committee to make such investigation, the justices of the  appellate
 division  are  authorized  to prescribe and from time to time to amend a
 form of statement or questionnaire to be  submitted  by  the  applicant,
 including specifically [his] THE APPLICANT'S present and such past plac-
 es  of  actual  residence as may be required therein, listing the street
 and number, if any, and the period of time [he] THE APPLICANT resided at
 each place. SUCH QUESTIONNAIRE SHALL NOT INCLUDE ANY QUESTIONS REQUIRING
 THE DISCLOSURE OF  THE  APPLICANT'S  HISTORY  OF  INTERACTION  WITH  LAW
 ENFORCEMENT  OR  THE CRIMINAL JUSTICE SYSTEM IF (I) SUCH INTERACTION WAS
 BEFORE  THE  APPLICANT  TURNED  EIGHTEEN,  (II)  DID  NOT  RESULT  IN  A
 CONVICTION, OR (III) RESULTED IN A CONVICTION WHICH IS NOW SEALED.
   §  4. Rule 9405 of the civil practice law and rules is amended to read
 as follows:
   Rule 9405. Prior application.   In the event that  any  applicant  has
 made  a  prior application for admission to practice in this state or in
 any other jurisdiction, then upon said statement or questionnaire or  in
 an  accompanying signed statement, [he] THE APPLICANT shall set forth in
 detail all the facts with respect to  such  prior  application  and  its
 disposition.  If  such prior application had been filed in any appellate
 division of this state and if the applicant failed to obtain  a  certif-
 icate  of  good  character  and  fitness  from the appropriate character
 committee or if for any reason such prior application was disapproved or
 rejected either by said committee or said appellate division,  [he]  THE
 APPLICANT  shall obtain and submit the written consent of said appellate
 division to the renewal of [his] THEIR  application  in  that  appellate
 division or in any other appellate division.
   §  5.  Rule  9406  of  the civil practice law and rules, as amended by
 chapter 226 of the laws of 1985, is amended to read as follows:
   Rule 9406. Proof.  No person shall receive said certificate  from  any
 committee and no person shall be admitted to practice as an attorney and
 counselor  at  law  in  the courts of this state, unless [he] THEY shall
 furnish satisfactory proof to the effect:
   1. that [he supports] THEY SUPPORT the  constitutions  of  the  United
 States and of the state of New York; and
   2.  that  [he has] THEY HAVE complied with all the requirements of the
 applicable statutes of this state, the applicable rules of the court  of
 appeals  and  the  applicable  rules  of the appellate division in which
 [his] THEIR application is pending, relating to the admission  to  prac-
 tice as an attorney and counselor at law.
   §  6.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.

2021-S9292A (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd RR9401, 9403, 9404, 9405 & 9406, CPLR
Versions Introduced in 2023-2024 Legislative Session:: S1646

2021-S9292A (ACTIVE) - Summary

2021-S9292A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9292A

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to making
technical corrections to ensure gender neutrality for the admission to
practice law and preventing any required disclosure of prior interaction
with law enforcement or the criminal justice system under certain
circumstances

 
PURPOSE OF BILL:

To prohibit unnecessary and discriminatory questioning of bar appli-
cants.

 
SUMMARY OF PROVISIONS:

Sections 1, 2, 4, and 5 amend rules 9401, 9402, 9405, and 9406 of the
CPLR to make them gender neutral.

Section 3 amends rule 9404 of the CPLR to make it gender neutral and to

prohibit the questioning of applicants about interactions with law
enforcement or the criminal justice system if such interaction (i) is no
longer pending and did not result in a conviction, (ii) resulted in a
juvenile proceeding or youthful offender adjudication, or (iii) resulted
in a conviction which is now sealed.

Section 6 provides the effective date.

 
JUSTIFICATION:

New York State's application for admission to the Bar must be revised to
eliminate impermissible questions about criminal justice involvement so
that it conforms to the requirements for licensing agencies set forth in
the New York Human Rights Law and Family Court Act.

The four departments of the Appellate Division of the New York Supreme
Court, pursuant to the authority granted in C.P.L.R. 9404, use question-
naires to screen the character and fitness of applicants seeking admis-
sion to practice law in New York State. Criminal justice involvement
must be disclosed in response to several questions, including Question
26, which currently asks:

"Have you ever, either as an adult or a juvenile, been cited, ticketed,
arrested, taken into custody, charged with, indicted, convicted or tried
for, or pleaded guilty to, the commission of any felony or misdemeanor
or the violation of any law, or been the subject of any juvenile delin-
quency or youthful offender proceeding?  Traffic violations that
occurred more than ten years before the filing of this application need
not be reported, except alcohol or drug-related traffic violations,
which must be reported in all cases, irrespective of when they occurred.
Do not report parking violations."

These questions are inconsistent with Section 296(16) of the New York
Human Rights Law, which provides, "It shall be an unlawful discriminato-
ry practice, unless specifically required or permitted by statute ...
for any person, ... including the state and any political subdivision
thereof ... to make any inquiry about, whether in any form of applica-
tion or otherwise, .. . any arrest or criminal accusation of such indi-
vidual not then pending against that individual which was followed by a
termination ... in favor of such individual .. . or by a youthful offen-
der adjudication ..." The bar application questions are also improper
under Section 380.1 of the New York Family Court Act which provides,
"Except where specifically required by statute, no person shall be
required to divulge information pertaining to the arrest of the (juve-
nile) respondent or any subsequent proceeding under this article."
Neither the Human Rights Law nor the Family Court Act exempts from the
prohibition against criminal record inquiries any of the administrative
agents of the New York Supreme Court who handle the licensing of attor-
neys.

Requiring disclosure of criminal justice involvement on the bar applica-
tion has an adverse impact on the representation of people of color in
New York law schools, which require disclosure on their application
forms to conform to the bar application's required disclosure. According
to recent New York State Bar Association Report, criminal record screen-
ing has a chilling effect on college and law school applicants from
communities of color due to the greater likelihood that they will be
arrested, and if arrested convicted, than their similarly-situated white
counterparts. The Report noted with concern that of the approximately
4,500 students admitted in 2021 to the 15 law schools in New York, fewer
than 400 identified as African American, Native American, Alaskan or
Pacific Islander. This disturbing under-representation of students of
color in law schools is reflected in the well-documented under-represen-
tation of people of color among lawyers admitted to practice in New
York.

The Report also noted that criminal record screening does not protect
the public from lawyers who go on to violate the ethical requirements of
the profession. The most prominent academic study of the effect of crim-
inal record screening in Connecticut on the rate of lawyer discipline
shows that such screening has no statistically-significant protective
effect for the members of the public who seek legal services. That
conclusion has not been contradicted by any data or study from the New
York Office of Court Administration.

Consistent with the findings and recommendations of the NYSBA, this bill
would conform the bar application to the requirements of current New
York law by eliminating questions that require disclosure of arrests
that are not pending at the time of application which had terminated in
the arrestee's favor, adjournments in contemplation of dismissal (which
are tantamount to dismissals), sealed convictions, juvenile delinquency
proceedings, and youthful offender adjudications. The bill will not
affect questions concerning convictions of adult offenders that have not
been sealed.

If adopted, New York would become a leader, along with California, in
eliminating over-broad and burdensome criminal record screening as a
barrier to aspiring lawyers from poor and under-represented communities.

 
LEGISLATIVE HISTORY:

New bill, 2022.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
On the sixtieth day after it becomes a law.

2021-S9292A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  9292--A
 
                             I N  S E N A T E
 
                               May 12, 2022
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
   printed to be committed to the Committee  on  Judiciary  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN  ACT to amend the civil practice law and rules, in relation to making
   technical corrections to ensure gender neutrality for the admission to
   practice law and preventing any required disclosure  of  prior  inter-
   action  with  law  enforcement  or  the  criminal justice system under
   certain circumstances
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Rule 9401 of the civil practice law and rules is amended to
 read as follows:
   Rule 9401. Committee.  The appellate division in each judicial depart-
 ment shall appoint a committee of not less than three practicing lawyers
 for  each  judicial  district  within the department, for the purpose of
 investigating the character and fitness of every applicant for admission
 to practice as an attorney and counselor at law in the  courts  of  this
 state.  Each  member  of  such  committee  shall  serve  until [his] THE
 MEMBER'S death, resignation or the appointment  of  [his]  THE  MEMBER'S
 successor.  A  lawyer who has been or who shall be appointed a member of
 the committee for one district may be appointed a member of the  commit-
 tee for another district within the same department.
   § 2. The opening paragraph and subdivision 1 of rule 9403 of the civil
 practice  law  and rules, as amended by chapter 226 of the laws of 1985,
 are amended to read as follows:
   Notwithstanding rule 9402, any application for admission  to  practice
 pending before a committee, may be referred to the committee for another
 judicial  district  in the same or another department by order or direc-
 tion of the presiding justice of the appellate division of  the  depart-
 ment  embracing  the  district in which the application is pending. Such
 order or direction may be made only upon  the  written  request  of  the
 [chairman] CHAIRPERSON or acting [chairman] CHAIRPERSON of the committee
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD15871-02-2

 S. 9292--A                          2
 
 before  which  the application is pending and only upon [his] THE CHAIR-
 PERSON OR ACTING CHAIRPERSON'S written certification either:
   1.  that  the applicant, since [he] THEY applied to take the bar exam-
 ination or to dispense with such examination or since [he] THEY  applied
 on  motion  to  be  admitted to practice, has changed [his] THEIR actual
 residence to such other judicial district in the same or  other  depart-
 ment, or, if not a resident of the state, has acquired full-time employ-
 ment  in  or  changed  [his] THEIR place of full-time employment to such
 other judicial district in the same or other department; or
   § 3. Rule 9404 of the civil practice law  and  rules,  as  amended  by
 judicial  conference  proposal number 7 for the year 1973, is amended to
 read as follows:
   Rule 9404. Certificate of character and  fitness.    Unless  otherwise
 ordered  by the appellate division, no person shall be admitted to prac-
 tice without a certificate from the proper committee that it  has  care-
 fully  investigated the character and fitness of the applicant and that,
 in such respects, [he] THE APPLICANT is entitled to admission. To enable
 the committee to make such investigation, the justices of the  appellate
 division  are  authorized  to prescribe and from time to time to amend a
 form of statement or questionnaire to be  submitted  by  the  applicant,
 including specifically [his] THE APPLICANT'S present and such past plac-
 es  of  actual  residence as may be required therein, listing the street
 and number, if any, and the period of time [he] THE APPLICANT resided at
 each place. SUCH QUESTIONNAIRE SHALL NOT INCLUDE ANY QUESTIONS REQUIRING
 THE DISCLOSURE OF  THE  APPLICANT'S  HISTORY  OF  INTERACTION  WITH  LAW
 ENFORCEMENT OR THE CRIMINAL JUSTICE SYSTEM IF SUCH INTERACTION (I) IS NO
 LONGER  PENDING  AND  DID NOT RESULT IN A CONVICTION, (II) RESULTED IN A
 JUVENILE PROCEEDING OR YOUTHFUL OFFENDER ADJUDICATION, OR (III) RESULTED
 IN A CONVICTION WHICH IS NOW SEALED.
   § 4. Rule 9405 of the civil practice law and rules is amended to  read
 as follows:
   Rule  9405.  Prior  application.   In the event that any applicant has
 made a prior application for admission to practice in this state  or  in
 any  other jurisdiction, then upon said statement or questionnaire or in
 an accompanying signed statement, [he] THE APPLICANT shall set forth  in
 detail  all  the  facts  with  respect to such prior application and its
 disposition. If such prior application had been filed in  any  appellate
 division  of  this state and if the applicant failed to obtain a certif-
 icate of good character  and  fitness  from  the  appropriate  character
 committee or if for any reason such prior application was disapproved or
 rejected  either  by said committee or said appellate division, [he] THE
 APPLICANT shall obtain and submit the written consent of said  appellate
 division  to  the  renewal  of [his] THEIR application in that appellate
 division or in any other appellate division.
   § 5. Rule 9406 of the civil practice law  and  rules,  as  amended  by
 chapter 226 of the laws of 1985, is amended to read as follows:
   Rule  9406. Proof.   No person shall receive said certificate from any
 committee and no person shall be admitted to practice as an attorney and
 counselor at law in the courts of this state,  unless  [he]  THEY  shall
 furnish satisfactory proof to the effect:
   1.  that  [he  supports]  THEY SUPPORT the constitutions of the United
 States and of the state of New York; and
   2. that [he has] THEY HAVE complied with all the requirements  of  the
 applicable  statutes of this state, the applicable rules of the court of
 appeals and the applicable rules of  the  appellate  division  in  which
 S. 9292--A                          3
 
 [his]  THEIR  application is pending, relating to the admission to prac-
 tice as an attorney and counselor at law.
   §  6.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.

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