(dissenting). I dissent because a person who has been admitted to the Bar for 17 years should not have his admission summarily revoked without a hearing and without any communication from the Board of Law Examiners (Board), the body which certified that he was eligible to be admitted. Respondent was admitted to the New York Bar in the First Department on July 7, 1970 without passing a Bar examination and pursuant to former part 526 of the Rules of the Court of Appeals. That rule reads in pertinent part:
"The examination is dispensed with in the case of any applicant entitled to examination under these rules who is a graduate of and has received a first degree in law from an approved law school * * * if it appears * * *
"(3) that after January 1, 1963, and after completing in an approved law school two-thirds of the requirements for graduation and for a first degree in law, his course of law school study was interrupted by active service in the armed forces for not less than twelve months”.
Petitioner Departmental Disciplinary Committee (DDC) seeks to revoke respondent’s admission to the Bar on the grounds that he misrepresented his eligibility before the Board and that he did not meet the requirements of the above-quoted rule. Specifically, petitioner contends that respondent misrepresented himself by claiming (1) that he had finished two thirds of his course work when he left New York University Law School in May 1964 and entered the service in April 1965 and (2) that he left law school in order to enter the Armed Forces. In reality, petitioner contends, because respondent had failed two courses and obtained unsatisfactory *117grades in other courses, he had not completed two thirds of the credits necessary for graduation. In addition, petitioner contends that there was a period of approximately 11 months between respondent’s departure from law school and his entrance into the service.
Respondent claims that he did not misrepresent the facts to the Board and that following his honorable discharge from the service and completion of law school requirements, said body approved his application.
The fact that petitioner and respondent dispute what was presented to the Board makes a hearing necessary to determine the facts. The application which respondent made to the Board is not included in the papers submitted here and petitioner tells us that the application is no longer in existence. Petitioner, however, does not give the basis of its knowledge that said application no longer exists.
Moreover, there should be no summary revocation of respondent’s admission to the Bar since there is nothing from the Board concerning respondent’s application. Information from the Board is essential, particularly in view of the statement by the movant DDC that "[i]t is * * * difficult if not impossible to ascertain whether respondent actually misrepresented to the Board his compliance with the above-cited Rules and his eligibility for admission without examination.” It should be noted that 1 of the 3 persons on the Board who certified that respondent was eligible for admission to the Bar is still a member of the Board. He may be able to shed light not only on how the rule quoted above was interpreted (for example, whether respondent’s ultimate retaking and passing of his courses satisfied the rule) by the Board but also on the respondent’s original application.
Finally, respondent is not a person who is currently practicing law. Because he is confined to prison awaiting trial on murder and related charges, he cannot represent clients. If he is convicted at trial, he will be automatically disbarred pursuant to Judiciary Law § 90 (4).
Murphy, P. J., Sullivan, Ross and Rosenberger, JJ., concur; Smith, J., dissents in an opinion.
Respondent’s name is stricken from the roll of attorneys and counselors-at-law in the State of New York, effective immediately.