Courts in other jurisdictions have reached similar conclusions. (See, e.g., Norton v. Macy (D.C. Cir. 1969) 417 F.2d 1161; Society forIndividual Rights, Inc. v. Hampton (N.D. Cal. 1973) 63 F.R.D. 399; Saal v. Middendorf (N.D. Cal. 1977) 427 F. Supp. 192, 199-203; Martinez v. Brown (N.D. Cal. 1978) 449 F. Supp. 207, 211-213; In re Kimball (1973) 33 N.Y.2d 586 [347 N.Y.S.2d 453, 301 N.E.2d 436]; cf. Major v. Hampton (E.D. La. 1976) 413 F. Supp. 66; Bruns v. Pomerleau (D.Md. 1970) 319 F. Supp. 58; Mindel v. United States Civil Service Commission (N.D. Cal. 1970) 312 F. Supp. 485; Erb v. Iowa State Board of PublicInstruction (lowa 1974) 216 N.W.2d 339. See generally Schlei Grossman, Employment Discrimination Law (1976) pp. 365-368.)

At oral argument the Government gave us a citation to the decision of the Appellate Division, Second Department, in In re Kimball, 40 A.D.2d 252, 339 N.Y.S.2d 302. The New York Court of Appeals, on July 3, reversed and remanded to the Appellate Division for reconsideration of the application for admission to the bar of an avowed, active homosexual, stating: "While appellant's status and past conduct may be now and has been in the past violative of accepted norms, they are not controlling, albeit relevant, in assessing character bearing on the right to practice law in this State. Notably, the Committee on Character and Fitness found appellant to be of good character and qualified at this time." 33 N.Y.2d 586, 347 N.Y.S.2d 453, 301 N.E.2d 436 (1973). The need for clarity of analysis is underscored, for example, by what seems to be the Government's claim of a need to explore the details of appellees' conduct, apparently whether it was limited to e. g., frottage, or whether it included the "criminal conduct" of sodomy or fellatio, which violates D.C. Code § 22-3502.

For this purpose of ensuring ethical professional behavior, should an applicant's moral character be judged solely on the basis of that applicant's status as an alcoholic? We think not. See Konigsberg v. State Bar, 353 U.S. at 267, 77 S.Ct. at 730 (the mere fact of membership in the Communist Party does not support an inference that a bar applicant lacks good moral character); In re Kimball, 33 N.Y.2d 586, 347 N.Y.S.2d 453, 301 N.E.2d 436 (1973) (an applicant's status as an avowed homosexual does not render him morally unfit for the practice of law); Petition of Schaengold, 83 Nev. 65, 422 P.2d 686 (1967) (an applicant cannot be denied admission to the bar on the ground of a history of mental illness). Rather, an applicant's moral character should be judged on the basis of that person's past and present pattern of conduct or behavior.

The fact that a person is admitted or disbarred to or from the bar of one state does not compel any other state to admit or disbar that person to or from its own bar. Missouri makes its own independent judgment as to the fitness of the members of its bar. The matter is well put in In re Kimball, 40 A.D.2d 252, 339 N.Y.S.2d 302, 305 (1973), reversed on other grounds, 33 N.Y.2d 586, 347 N.Y.S.2d 453, 301 N.E.2d 436 (1973), as follows: "We believe that we are not bound to give full faith and credit to the Florida judgment of disbarment in the constitutional sense ... Reasons of policy regarded as significant in one State in their effect on the conduct of attorneys may not prevail in another State, because of differing conditions; the sensitive office of an attorney must be continually subject to the control of the courts in which the attorney practices or seeks admission.

Making the choices that lead to the commission of serious crimes, such as petitioner did, is unquestionably indicative of bad moral character. Of course, the nature of the criminal conduct is important; where an applicant's past criminal conviction is for conduct that we no longer consider criminal, or even indicative of bad moral character, it should have no impact on consideration of that individual's application for admission to the bar (see Matter of Kimball, 33 NY2d 586 [1973]). But, in contrast, a history of convictions for robbery and murder, for example, would be likely to "operate to disqualify [an applicant], on character grounds, from being admitted to practice" (see Matter of Roger MM., 96 AD2d 1133 [3d Dept 1983]).

Making the choices that lead to the commission of serious crimes, such as petitioner did, is unquestionably indicative of bad moral character. Of course, the nature of the criminal conduct is important; where an applicant's past criminal conviction is for conduct that we no longer consider criminal, or even indicative of bad moral character, it should have no impact on consideration of that individual's application for admission to the bar ( see Matter of Kimball, 33 N.Y.2d 586, 347 N.Y.S.2d 453, 301 N.E.2d 436 [1973] ). But, in contrast, a history of convictions for robbery and murder, for example, would be likely to “operate to disqualify [an applicant], on character grounds, from being admitted to practice” ( see Matter of Roger Mm., 96 A.D.2d 1133, 466 N.Y.S.2d 873 [3d Dept. 1983] ).

Thus, the California Supreme Court noted (p 467) that "past decisions of this court establish that this general constitutional principle applies to homosexuals as well as to all other members of our polity; under California law, the state may not exclude homosexuals as a class from employment opportunities without a showing that an individual's homosexuality renders him unfit for the job from which he has been excluded." It also asserted that courts in other jurisdictions reached similar conclusions, citing Matter of Kimball ( 33 N.Y.2d 586). In that case an attorney who had been convicted of sodomy in Florida and had been denied admission to the Bar by the Appellate Division, appealed to the Court of Appeals, which reversed the Appellate Division and remitted to the Appellate Division for reconsideration of the application.

In his answer, respondent challenges the findings of the Arizona Supreme Court, advancing the same arguments that were rejected by that court. Although we are not bound to give full faith and credit to the Arizona disciplinary judgment, the disciplinary judgment of a sister State is, unless good reason to the contrary is shown, entitled to high respect. ( Matter of Kimball, 40 A.D.2d 252, 254, revd on other grounds 33 N.Y.2d 586; Matter of Kaufman, 81 N.J. 300; Disbarment or Suspension in Other State, Ann., 81 ALR3d 1281.) Respondent's grounds for rejecting the Arizona court's determination, in our opinion, are lacking in merit. Inasmuch as the purpose of disciplining a lawyer for professional misconduct committed in another State is to protect the public and to preserve public confidence in the legal profession, that end will be met by imposing the same punishment upon respondent in this State as was imposed in Arizona.

We concluded that the Alford case does not support respondent's contention; that in Alford ( supra), the court merely held that it is proper for a court to accept a defendant's plea of guilty to a lesser crime in compromise of an indictment, provided the plea is voluntarily made (see, accord, People v. Clairborne, 29 N.Y.2d 950; People v. Foster, 19 N.Y.2d 150; People v. Griffin, 7 N.Y.2d 511). As we shall point out later herein, no claim is made, nor can there be, that either of respondent's above guilty pleas was involuntary. Although respondent suggested that his pleas were reluctantly made and were similar to pleas of nolo contendere and hence of no effect in another proceeding (see Matter of Kimball, 33 N.Y.2d 586), the plea of nolo contendere has been abolished in New York ( Ando v. Woodberry, 8 N.Y.2d 165, 170) and the records of respondent's pleas show conclusively that they were nothing less than pleas of guilty to reduced charges to avoid convictions for the more serious charges and the severe sentences likely to be imposed thereon. We ruled, therefore, that in the absence of a contention that respondent has evidence "which was unavailable to him" at the time of those pleas (see Matter of Keogh, 17 N.Y.2d 479, 481) the convictions were final and binding upon him.

The court however cautioned that "the constitutional provision does not deny a public utility's management the authority to exercise legitimate judgment in employment decisions" (p 475). In New York, the issue of whether an applicant who was a homosexual was thereby rendered unfit to be a member of the State Bar was raised in Matter of Kimball ( 33 N.Y.2d 586). The Court of Appeals said no, reversing the decision of the Appellate Division, Second Department ( 40 A.D.2d 252, 258), and adopted the reasoning of the dissenting opinion in the Appellate Division where it was stated that "an applicant for admission to the Bar in New York * * * cannot be considered unfit or lacking the requisite character to practice law, merely because he is an avowed homosexual".