(concurring).
I agree that the complaints herein should be dismissed, but I would dismiss on the merits and hold that New York’s procedures for disciplining its attorneys are constitutional for the reasons stated in Judge Neaher’s opinion.
The issues presented for court review are clear but the path towards their resolution may be beset by procedural road blocks. However, where the destination to be reached is so apparent, courts should be sufficiently flexible not to be thwarted by procedural technicalities. As previously stated, the case came before Judge Weinstein as a single Judge. He could have held that plaintiffs’ complaints presented no issue ripe for federal intervention or adjudication and dismissed the complaints, which would have been appealable to the court of appeals or have held that a constitutional issue cognizable by the federal courts existed requiring the appointment of. a three-judge court. Finding the latter issue present, he sought and obtained the appointment of such a court.
As that court, we have been afforded the benefit of lengthy briefs and heard oral argument by able counsel. In the present posture of the litigation we have the privilege of granting or denying the injunction requested and are assured under 28 U.S.C. § 1253 that any party may appeal to the Supreme Court from an order thereon of a “district court of three judges.” A possible alternative is abstention. Since the constitutional question is of sufficient importance to be resolved by our highest court, superficially it would seem to make little difference what the outcome in this court might be. However, any such nonchalant approach is quickly foreclosed by recent admonitions of the Supreme Court itself.
In MTM, Inc. v. Baxley, 420 U.S. 799, 95 S.Ct. 1278, 43 L.Ed.2d 636 (1975), the Supreme Court considered the qualifications for appealability from a three-judge court which had been convened in a federal court action to enjoin enforcement of a State court injunction and to declare an Alabama nuisance statute unconstitutional. In view of the pendency of the State court action, the three-judge court applying the test of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 2d 669 (1971), concluded that federal court intervention would be improper. Because of the pendency of the State court cases and because of the failure to show the circumstances required by Younger to afford an exception to its rule, the three-judge court dismissed the complaint without prejudice to the State court proceedings but gave “no opinion as to the merits of these cases.” MTM, Inc. v. Baxley, sub nom. General Corporation v. Sweeton, 365 F.Supp. 1182 (1973).
The appellant brought the case directly to the Supreme Court under 28 U.S.C. § 1253 and argued that Younger did not preclude relief. In its opinion per curiam that Court focused on the question of whether direct review under § 1253 was applicable “in the absence of three-judge court decision resting on resolution of the constitutional merits of a complaint.” The Court recognized that:
“The conflicting decisions of this Court on the question of whether § 1253 jurisdiction attaches where a three-judge federal court fails to reach the merits of a constitutional claim for *200injunctive relief do not provide a consistent answer to this question.” (Citing cases) (420 U.S. 799, 95 S.Ct. 1278, at p. 1281, 43 L.Ed.2d 636).
The Court had decided the previous week (March 18, 1975) Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed. 2d 482 wherein it had considered at length “[t]he seriousness of federal judicial interference with state civil functions . . .”, id. at 1208, and more than suggested that in such circumstances federal courts “should abide by standards of restraint.” Id.
Our dilemma is further complicated by such statements as “[t]he issue of whether federal courts should be able to interfere with ongoing state proceedings is quite distinct and separate from the issue of whether litigants are entitled to subsequent federal review of state court dispositions of federal questions.” Id. at 1209.
The final decision in Huffman was to remand for consideration by the District Court to consider whether the “irreparable injury” exception of Younger could be shown so as to give that court jurisdiction.
Turning again to MTM, Inc. v. Baxley, we are told that “a direct appeal will lie to this [the Supreme Court] Court under § 1253 . . . only where such order rests upon resolution of the merits of the constitutional claim presented below.” {MTM, 95 S.Ct. at 1281.)
In an endeavor to analyze the effect of these decisions on the cases before us, it would seem that this three-judge court is put in the anomalous position, in order to enable the parties to appeal, of having to pass upon the merits of the constitutionality of New York’s disciplinary statute in a proceeding in which federal intervention may not be permitted.
Procedural obstacles should not prevent the real issue from being decided, if possible. That issue is whether New York’s authorization of the Justices of its respective Appellate Divisions to act as the disciplinary bodies over the conduct of its attorneys is unconstitutional because the prescribed procedures with respect to attorneys is different from that of other litigants, namely, as to all the features described at length by Judge Weinstein in his dissent. At this stage it would seem a needless expenditure of judicial energy to dissolve this court and remand (as in MTM) to the District Court “so that a fresh order may be entered and a timely appeal prosecuted to the Court of Appeals.” (MTM, 95 S.Ct. at 1281.) Such courts would only be met by the same arguments which plaintiffs adequately present here.
On remand the plaintiffs could be told that they failed specifically to claim the unconstitutionality of the State’s Judiciary Law § 90 procedure in their applications for leave to appeal to the New York Court of Appeals and that they had thereby deprived themselves of the opportunity to reach that court and the Supreme Court thereafter. Or the court might express the hope that they might be. able to discover some procedure to start over again and ultimately to reach the Supreme Court. But why in a day when conservation of judicial effort is so important should the courts shy away from deciding the issue now before them. Despite the fact that federal intervention in a State’s disciplinary procedures with respect to its attorneys would seem inappropriate, the talismanic words of Younger “irreparable injury” may be sufficient to justify a consideration of this case on its own merits.
*201Summary of Memorandum
I. New York Disciplinary Procedure 202
II. Facts 202
Mildner 202
Levin 203
Gerzof 204
III. Jurisdiction 204
A. Defendants Are Not Immune from Suit 204
B. Plaintiffs’ Actions Are Not Barred 205
C. There is No Disruption of State Court Proceedings 206
D. State Court Supervision of Attorneys is Subject to .
United States Constitution 207
IV. Due Process . 210
A. The Right Generally' 210
B. Meaningful Hearing by Trier of Fact 212
1. Right to Hearing by Trier of Fact 212
a. Evaluating Credibility of Witnesses 212
b. Right to Argue to Trier ' 213
e. Statement of Reasons for Decision 215
Court of Original Jurisdiction 215
Administrative Determination 216
Appellate Review 217
2. Failure to Meet Due Process Trial Standard 220
C. Appellate Review 223
1. Due Process Requirement 223
2. Failure to Give Due Process at Trial or Appellate 224 Level
V. Equal Protection 224
A. Right to Appeal in New'York 224
B. Nature of Appellate Review 225
C. Lack of Basis for Denial to Attorneys 226
VI. Alternatives to New York Practice 228
VII. Retroactivity 228
VIII. Conclusion 229
Appendix A. New York Judiciary Law § 90 230
Appendix B. New York Right to Appellate Review 232