The Character Committee has unanimously found that the applicant now has thé character and fitness required for admission to the Bar, even though he was and is a homosexual; and, so finding, it said it did not consider his homosexuality indicative, of unfitness to practice law. But, despite its finding of fitness, the Character Committee did not expressly recommend that he be admitted, because it was unsure whether Matter of Peters (250 N. Y. 595) and subdivision 5 of section 90 of the Judiciary Law made his 1957 disbarment in Florida a conclusive bar to his admission presently in New York.
The majority is holding that neither Peters nor the Judiciary Law so restricts our power and that we are free to exercise our independent judgment as to whether the applicant is fit for admission, regardless of the applicant’s disbarment in Florida some 15 years ago. We agree with the majority on this point. But the majority then proceeds to deny him admission on the basis of that old disbarment and the proceedings that led up to it, despite its correct conclusion that we are not bound by the disbarment and are free ourselves to determine whether the applicant is now fit to practice law in New York, and despite the unanimous finding of the Character Committee that the applicant is in fact now fit for admission. With that determination we do not agree.
As the majority has pointed out, we are not constitutionally bound to give full faith and credit to the Florida disbarment (Florida Bar v. Wilkes, 179 So. 2d 193 [Fla.]; Ann. 173 A. L. R. *258298 et seq.; 7 Am. Jur. 2d, Attorneys at Law, § 20; cf. Theard v. United States, 354 U. S. 278; Matter of Rhodes, 370 F. 2d 411, cert. den. 386 U. S. 999). Nor should we recognize the Florida disbarment as a bar to admission here under the principle of comity, as that is merely a principle of interstate courtesy and ■Florida has not extended that courtesy to New York by so recognizing a New York disbarment (see Florida Bar v. Wilkes, supra). However, wholly apart from Florida’s refusal of reciprocal courtesy, we cannot and should not blindly follow its disbarment holding, because, as the majority admits, differing conditions of place, time and social and moral climate may well dictate a different holding in New York today than was made in Florida in 1957 with respect to the applicant’s fitness to practice law.
While the majority avoids the issue of homosexuality and homosexual acts as a purported badge of unfitness to practice law, we prefer to meet that issue squarely. To us it seems clear that the social and moral climate in New York (and probably throughout the Western World) has in recent years changed dramatically with respect to homosexuality and consensual homosexual acts. Today they are generally viewed as no more indicative of bad character than heterosexuality and consensual heterosexual acts (cf. Matter of Kerma Rest. Corp. v. State Liq. Auth., 21 N Y 2d 111; Matter of Becker v. New York State Liq. Auth., 21 N Y 2d 289).* In our opinion, an applicant for admission to the Bar in New York in 1972 cannot, be considered unfit or lacking the requisite character to practice law, merely because he is an avowed homosexual; and we agree with the Character Committee’s finding that this applicant is fit for admission to the Bar.
The majority says that, the Florida disbarment of this applicant was based upon a charge of sodomy to which he had, in effect, interposed a plea of nolo contendere; that in 1955, when that offense was allegedly committed in Florida, it would have been a felony in New York; that if the applicant had then been convicted of that offense in New York he would have been disbarred automatically “ and he could not be readmitted”; and that “if he could not have been readmitted, initial admission may not be granted.” We disagree with that conclusion for various reasons. First, it is the general rule that a plea of nolo *259contendere has no effect beyond the particular case in which it is entered; it cannot be used against the defendant as an admission of guilt in any other criminal proceeding; it cannot be used to affect his civil rights or to effect a civil disqualification for a license; it cannot be used as an admission in a civil suit or proceeding based on the same act; and in such civil proceeding he is not estopped from denying the facts to which he pleaded nolo contendere (21 Am. Jur. 2d, Criminal Law, § 502; 22 C. J. S., Criminal Law, § 425 [4], pp. 1206-1207). Secondly, under both Florida and New York law, the act allegedly committed by this applicant in 1955 would today be only a misdemeanor ; an attorney convicted of a misdemeanor is not automatically disbarred but can be retained on the rolls if found of fit character despite that conviction. We are here concerned with this applicant’s present fitness and, as previously noted, we believe him now of fit character even though he is a conceded homosexual. Thirdly, while it is unnecessary to reach this point in the present case, we note that our present statute making consensual sodomy a misdemeanor (Penal Law, §§ 130.00, 130.38) may well be unconstitutional, as unreasonably discriminatory, because it makes it a crime when committed by unmarried persons but not when committed by married persons.
Apparently referring to the applicant’s claim of innocence and some discrepancies in his testimony at the different hearings therein held, the majority further finds him unfit because of his “ conduct ” in the 1955 disbarment proceeding in Florida. We do not find those discrepancies material and, despite them, the whole tenor of his testimony was consistent with his claim of innocence. Nor do we agree with the majority’s implication (a) that these minor discrepancies, coupled with the testimony against the applicant in that proceeding, indicate that his claim of innocence was false, (b) that we must accept the finding of guilt in that proceeding and (c) that all this indicates improper conduct which establishes the applicant’s present lack of fitness and good character. We are not bound to accept the finding of guilt in that proceeding or to assume that the applicant’s claim of innocence is necessarily false. And even if we felt ourselves so bound, when we consider the applicant’s youth at the time of the disbarment proceeding, the nature of the charge against him, the social and moral climate then prevailing with respect to such acts, the predicament he was in, and what must have been his then distraught emotional and mental state, we cannot view his attempts to exculpate himself as establishing a basic lack of good character. Certainly, they cannot be deemed to be such gross defects of character that even the healing passage *260of 15 years of undisputed good behavior has not erased them. Again, it should be emphasized that it is the applicant’s present fitness and character that we are here considering and that the Character Committee, having personally seen and examined him, has found him now of fit character despite that incident in his distant past. We should not upon a cold record disregard the conclusion to which the examiners came after such an examination (Boyd v. Boyd, 252 N. Y. 422, 429).
For all the foregoing reasons we vote to admit this applicant to the Bar.
Hopkins, Acting P. j., Munder and Latham, JJ., concur in Per Curiam opinion; Martuscello and Shapiro, JJ., dissent and vote to grant the application, with an opinion.
Application for admission to the Bar denied.
For example, a recent court decision, outside New York State, has held that a school teacher is not unfit to teach merely because he is a homosexual. Also indicative of the changed climate is the spate of stage shows, movies, TV shows, articles and books according sympathetic treatment to homosexuals and their problems as a “ minority ” group.