19-166-cv
     In re: James M. Kernan

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 22nd day of May, two thousand twenty.
 4
 5          PRESENT: PIERRE N. LEVAL,
 6                           RAYMOND J. LOHIER, JR.,
 7                           RICHARD J. SULLIVAN,
 8                                   Circuit Judges.
 9          ------------------------------------------------------------------
10
11          IN RE: JAMES M. KERNAN
12
13          ------------------------------------------------------------------
14          JAMES M. KERNAN, ESQ.,
15
16                            Appellant,
17
18                    v.                                                         No. 19-166
19
20          UNITED STATES DISTRICT COURT FOR THE
21          NORTHERN DISTRICT OF NEW YORK,
 1                            Appellee.
 2   ------------------------------------------------------------------
 3
 4           FOR APPELLANT:                                               FRANK POLICELLI, Law Office
 5                                                                        of Frank Policelli, Utica, NY.
 6
 7           FOR APPELLEE:                                                No Appearance.
 8
 9          Appeal from an order of the United States District Court for the Northern
10   District of New York (Frederick J. Scullin, Jr., Judge).
11
12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
13   ADJUDGED, AND DECREED that the appeal is DISMISSED.
14
15          James M. Kernan, Esq., a member of the bar of the State of New York and a
16   former member of the bar of the United States District Court for the Northern
17   District of New York (NDNY), appeals from an order of the District Court
18   (Scullin, J.) striking him from the membership roll of the NDNY bar. In 2009,
19   Kernan was convicted of a felony and was consequently suspended from practice
20   in New York. Having subsequently been reinstated to the bar of the State of New
21   York, Kernan applied for readmission to the NDNY bar. The District Court first
22   granted his application, but subsequently decided that its order had been
23   erroneous and entered the order appealed from, revoking his membership. The
24   District Court ordered the revocation without a hearing as to Kernan’s character
25   and fitness because it construed the Local Rules of Practice of the NDNY to make
26   convicted felons ineligible for membership.
27
28         Kernan brought this appeal, arguing, inter alia, that the revocation of his
29   membership without affording him a right to be heard was a denial of due
30   process and a violation of the Local Rules. On November 8, 2019, we remanded
31   this matter pursuant to United States v. Jacobson, 

, 21–22 (2d Cir. 1994),
32   to permit the District Court to reconsider whether the NDNY Local Rules made
33   Kernan, as a convicted felon, categorically ineligible for membership, and thus
34   required the denial of his application. See In re Kernan, 783 F. App’x 106 (2d Cir.

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 1   2019). The District Court adhered to its ruling that the Local Rules required the
 2   denial of Kernan’s application without need for an individualized assessment.
 3   See In re Kernan, No. 19-mc-1 (FJS), 

, at *1 (N.D.N.Y. Dec. 4,
 4   2019). Kernan then reinstated his original appeal.
 5
 6          On February 4, 2020, the NDNY, by General Order 57, amended its local
 7   rules governing membership and attorney discipline. The new rules, which are
 8   provisionally in effect pending a period for notice and comment, unambiguously
 9   provide that an attorney whose membership has been suspended or stricken may
10   be readmitted upon demonstration by clear and convincing evidence of his
11   “moral qualifications, competency, and learning in the law.” See Gen. Order 57,
12   N.D.N.Y. L.R. 83.4(m); Dkt. No. 117. Kernan is now eligible for reinstatement,
13   subject to his making the required showing to the satisfaction of the Northern
14   District.
15
16          If, during the pendency of an appeal, a case ceases to present a live
17   controversy, the appeal must be dismissed as moot. See Russman v. Bd. of Educ. of
18   Enlarged City Sch. Dist. of Watervliet, 

, 118–19 (2d Cir. 2001). Under
19   General Order 57, Kernan’s felony conviction does not categorically bar his
20   readmission to membership. He may apply for reinstatement and, under the new
21   Rule 83.4(m), he will receive an individualized assessment as to his character and
22   fitness. Success on his appeal would have given him no more than that. For that
23   reason, Kernan’s appeal is dismissed as moot.
24
25         We have considered Kernan’s remaining arguments and conclude that
26   they are without merit. For the foregoing reasons, the appeal is DISMISSED.
27
28                                         FOR THE COURT:
29                                         Catherine O’Hagan Wolfe, Clerk of Court




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