Admission of Brown

895 A.2d 1050, 392 Md. 44, 2006 Md. LEXIS 176

• Court: Court of Appeals of Maryland
• Decided: April 11, 2006
• Docket: Misc. Docket No. 10 September Term, 2005
• Status: Published

Opinions

BATTAGLIA, Judge.

In this case we are asked to decide whether to grant the petition for admission to the Maryland Bar of Emsean L. Brown, who was convicted of bank fraud in 1991, was incarcerated, and since that time has misrepresented various aspects of his history. We determine that Mr. Brown presently does not possess the requisite moral character required to be admitted to the Maryland Bar.¹

I. Background

In 1989, Emsean L. Brown, then 24, and an employee at the Citizen’s Bank of Maryland (“Bank”),² with knowledge of how it would be used, began providing customer information— specifically, customers’ names, addresses, account numbers, and balances—to Ramona Baldwin, not an employee of the bank, who used the information to obtain Maryland drivers’ licenses to gain access to monies from customers’ accounts through checks and bank cards provided by Mr. Brown. Mr. Brown and Ms. Baldwin shared the proceeds of the fraud with two additional Bank employees who were also involved in the scheme and an individual employed at the Motor Vehicle Administration who helped obtained the fraudulent drivers’ licenses. The Bank suffered a total loss of $94,268.55 as a result of the scheme, $14,250.00 of which Mr. Brown received.

In 1990 the Bank discovered the scheme and terminated Mr. Brown’s employment. Mr. Brown subsequently confessed to his involvement and pled guilty to the crime of bank fraud in the United States District Court for the District of Maryland. On February 12, 1991, he was sentenced to ten months imprisonment, three years probation, and the payment of $14,250.00 in restitution. He was released from prison in January of 1992, and, as a condition of probation, was required to pay $100 each month toward his restitution. In January of 1995 Mr. Brown completed his probation. He also stopped making restitution payments at this time.

In February, 1999 Mr. Brown applied to the University of Baltimore School of Law and marked “No” on his application in response to two pivotal questions:

Have you ever been charged with, arrested for, convicted of, pled guilty or nolo contendere to a violation of any law, including driving under the influence of drugs or alcohol? If so, please provide a complete, factual description of the circumstances surrounding the incident(s) and the court’s disposition of the eharge(s).

Have you ever been discharged from employment or the armed forces under conditions other than honorable?

Mr. Brown, when applying for admission to the Maryland Bar, represented that he answered “no” to the first question because he thought his conviction had been expunged. He also stated that he had notified the law school when he discovered his conviction had not been expunged. He never explained why he answered “no” to the discharge from employment question.

Additionally, another question on the law school application required Mr. Brown to:

List all full-time employment, including military service, beginning with the most recent. Account for all periods since high school graduation, any intervals between your college years and all positions held since college graduation. If you have spent any significant length of time not in school or working, please explain.

In response, Mr. Brown wrote, “PLEASE SEE RESUME,” and attached a resume that listed him as having been employed with the Richard Leahy Corporation from February, 1990 through August, 1992, although, in fact, Mr. Brown actually had been incarcerated from April, 1991 to January, 1992.

On May 16, 2003, Mr. Brown filed an application with the State Board of Law Examiners (“Board”) for admission to the Maryland Bar pursuant to Rule 2.³ On the application, Mr. Brown disclosed that in 1990 he was convicted of one count of bank fraud and that he failed to affirmatively answer the question on his law school application regarding whether he had ever been convicted of a crime. Mr. Brown did not reveal on his bar application that he also had failed to disclose on his law school application that he had been terminated from employment with the Bank or that he had failed to disclose his lapse in employment history because of his incarceration. Pursuant to Rule 5(b)(1),⁴ Mr. Brown’s bar application was forwarded to a member of the Character Committee.

During the Committee’s investigation, the member assigned the investigation requested that Mr. Brown provide a description of the occurrence that led to the bank fraud conviction and the details surrounding his repayment of the ordered restitution in the form of a sworn affidavit, to which Mr. Brown responded by letter. The Committee member also requested from the law school Mr. Brown’s complete law school file, which included correspondence between the Dean, Mr. Brown, and the Public Defender who had represented Mr. Brown when he was convicted. The Committee member subsequently recommended that the Committee conduct a hearing regarding Mr. Brown’s application pursuant to Rule 5(b)(2)⁵ because there were grounds for denying his applicalion; a hearing was held on September 26, 2004, at which Mr. Brown was represented by counsel. A Circuit Court Judge, for whom Mr. Brown had clerked, testified on his behalf, and another Circuit Court Judge submitted a letter in support of his admission.

The Committee hearing record revealed that Mr. Brown first notified the law school of his conviction in November, 2000, the first semester of Mr. Brown’s second year of law school, when Mr. Brown explained to the Dean, first verbally and then in written form, that he believed he did not have to disclose his conviction because the Public Defender who represented him had assured him that his record would be expunged. Mr. Brown also alleged that at the time of the hearing the University’s website contained an application that only required disclosure of convictions that had not been expunged or pardoned, although he was unsure whether the application contained that language at the time that he applied for admission to the law school. With regard to this explanation, the Committee found that, prior to entering law school, Mr. Brown had taken paralegal courses at Montgomery College, which included “Introduction to Legal Systems,” “Criminal Law,” “Legal Research,” and “Business Law,” and thus understood the distinction between a conviction and an arrest such that he knew that the law school application was soliciting the disclosure of both. Moreover, the Committee noted that Mr. Brown’s Public Defender denied ever advising Mr. Brown that his record would be expunged.

Mr. Brown also asserted that, after being terminated by Citizen’s Bank, he gave the head teller of the branch office where he worked a key for a safe-deposit box containing approximately $7,000 to $8,000 in cash, which was then recovered by the Bank to be applied towards restitution. The Committee found, however, that Mr. Brown failed to prove that he was entitled to credit for the $7,000 to $8,000 because there was no reference to the discovery and seizure of the money in the federal presentence report nor was there any documentation to support his claim. The Committee hearing also revealed that, notwithstanding the $7,000 to $8,000 in cash Mr. Brown claims the Bank recovered, as of the hearing date, Mr. Brown’s court-ordered restitution, in fact, had not been satisfied and that Mr. Brown only began to arrange for satisfaction of the restitution through contact with SunTrust Bank when the hearing was scheduled in contemplation of his admission to the Bar. Additionally, the Committee found that the Circuit Court Judge who testified on Mr. Brown’s behalf, although informed before employing Mr. Brown of the bank fraud conviction, was not aware of either Mr. Brown’s failure to disclose his conviction on his law school application or his failure to complete restitution.⁶

The Committee determined that:

A. That the bank fraud conviction in 1990 coupled with the facts and circumstances surrounding the scheme to defraud bank customers is a course of conduct which involved serious moral turpitude.

B. That the Applicant’s failure to address, acknowledge and satisfy the restitution requirement of the Judgment in a Criminal Case (Case No. JH-90-0376) is not consistent with the fitness required to practice law in Maryland.

C. That the Applicant’s failure to make a full and complete disclosure of the criminal incident on his Law School application, whether in response to the question regarding criminal arrest/conviction or the question regarding discharge from employment, is not justified by the belief, past or present, or the assertion, that the criminal record is expunged.

D. The accomplishments and development of the Applicant are not without merit and recognition. However, he has not yet met the burden of proving, by clear and convincing evidence, good moral character and present fitness to practice law in the State of Maryland,

and recommended that Mr. Brown’s application to the Bar be denied.

Pursuant to Rule 5(c),⁷ the State Board of Law Examiners then gave Mr. Brown an opportunity to be heard on April 15, 2005. Mr. Brown appeared with counsel and presented five witnesses, all of whom had worked with Mr. Brown, including: three Circuit Court Judges, all of whom testified telephonically, a former Assistant Public Defender, and the General Counsel for Morgan State University. Mr. Brown also supplied the Board with numerous documents, including affidavits attesting to his character from: the mother of his child, stating that, after Mr. Brown’s paternity was established, Mr. Brown had become an active part of his daughter’s life and initiated child support payments on his own accord; former managers from previous jobs; a classmate from law school; a classmate from college and a classmate from high school, in addition to an affidavit from Emmanuel Bailey, former Manager of the branch office of the Bank where Mr. Brown was employed, stating that he and Jerilynn Taylor, former Assistant Vice President of the Bank, opened up the safe deposit box and recovered thousands of dollars. He also supplied copies of letters that he had penned to Dana Bruce, paralegal with SunTrust Bank, affirming that Mr. Brown had completed payment of restitution to the Bank as of October 2004 and another to Ms. Taylor requesting that she provide any information she may have regarding the recovered cash. In response, a letter was submitted to the Board by Ms. Taylor disclaiming Mr. Brown’s contention that she had recovered cash from a safe deposit box.

The record developed before the Board also reflected that in October of 2004, Mr. Brown telephoned Ms. Dana Bruce, a paralegal with SunTrust Bank, to discuss completion of his restitution, and that he initially identified himself to her as an attorney. The Board was unable to ascertain whether Mr. Brown had satisfied his obligation to make restitution, which Mr. Brown had calculated to be $3,650 in September, 2004, and which he paid in October, 2004, or whether a safe deposit box had been found.

In addition to the Committee’s finding that Mr. Brown denied both his bank fraud conviction and termination from Citizen’s Bank on his law school application, the Board record further revealed that at the time Mr. Brown was applying to law school he understood what it meant to be charged with a crime as opposed to being convicted of a crime, but was not aware of the procedural nuances for expungement of a federal conviction as distinguished from a state conviction. Upon attending his first year of law school, however, Mr. Brown asserted that he had learned that, unlike a conviction of a state crime, a federal conviction requires a presidential pardon for expungement, which he had not received, thereby requiring disclosure of the conviction to the law school. Additionally, although within the record of the Committee, the Board addressed, for the first time, the fact that Mr. Brown had not revealed his incarceration on the resume that he attached to his law school application by indicating that he was employed during that time. The Board report included Mr. Brown’s statement that it was not his intention in attaching the inaccurate resume to make the law school believe that he never was incarcerated.

Testimony before the Board also revealed that none of the five witnesses presented by Mr. Brown at the hearing was aware of his failure to disclose his termination from employment and conviction of bank fraud on his law school application, the falsification of employment dates on the resume attached to the application, and his neglect in completing the court-ordered restitution. Moreover, none of Mr. Brown’s employers prior to or during law school was aware of his conviction. To this end, Mr. Brown testified before the Board that none of these employers had required him to fill out an application or disclose whether he had any prior convictions during the application process. He further testified that he was placed at Howrey & Simon, a law firm at which he worked before law school, through a temporary agency, and that he had disclosed his conviction to the temporary agency, when required to do so.

The Board decided by a majority of four to three that, [wjhile the Board believes he was opportunistic with regard to his law school application, restitution and his dealings with Ms. Bruce at SunTrust Bank, the majority does not believe these incidents to be determinative with regard to the applicant’s rehabilitation.

The crime for which the applicant was convicted occurred fifteen years ago. The applicant was twenty-four years old at the time. In spite of the conviction, he continued working and completed his education. He is now married with two children. He has no record of committing further crimes. The record reflects the applicant’s remorse for his actions of fifteen years ago. The applicant has presented positive testimony regarding his work and integrity, including two Judges from Circuit Court in Montgomery County, one from the Circuit Court for Baltimore City and two members of the Maryland Bar. His employment references indicate a conscientious work record and did not indicate criminal activity.

Pursuant to Rules 5(c) and (d),⁸ a show cause hearing was held before this Court to determine whether it should accept the Board’s recommendation.

II. Standard of Review

The issue before us is whether Mr. Brown possesses the present good moral character to practice law. In re Application of Hyland, 339 Md. 521, 535, 663 A.2d 1309, 1316 (1995). Good moral character is required for admission to any Bar and is denoted by “those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility.” Id. at 534, 663 A.2d at 1315 (quoting Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 77 S.Ct. 752, 760, 1 L.Ed.2d 796, 806 (1957) (Frankfurter, J., concurring)).

When an applicant has engaged in criminal activity, to meet his or her burden of proving good moral character and fitness for the practice of law pursuant to Rule 5(a), the applicant must show that “he has so convincingly rehabilitated himself that it is proper that he become a member of a profession which must stand free from all suspicion.” In re Application of A.T., 286 Md. 507, 514, 408 A.2d 1023, 1027 (1979); In re Application of Allan S., 282 Md. 683, 690, 387 A.2d 271, 275 (1978). Thus, “the absence of good moral character in the past is secondary to the existence of good moral character in the present,” Application of Allan S., 282 Md. at 691, 387 A.2d at 275, and the past conviction merely “adds to his burden of establishing present good character by requiring convincing proof of his full and complete rehabilitation.” In re Application of Dortch, 344 Md. 376, 387, 687 A.2d 245, 250 (1997) (quoting Application of Allan S., 282 Md. at 690, 387 A.2d at 275). Factors considered when an applicant presents a prior conviction are: whether the conviction was of a crime of moral turpitude; the time of its commission; other relevant circumstances involved; the fact that the burden rests upon the applicant to prove his good moral character; and then, most importantly, whether the applicant has been rehabilitated. In re Application of James G., 296 Md. 310, 316-17, 462 A.2d 1198, 1202 (1983); Application of Allan S., 282 Md. at 692, 387 A.2d at 277.

Although the Board’s recommendation to admit Mr. Brown is entitled to great weight, because this Court is charged with “the primary and ultimate responsibility for regulating the practice of law and the conduct and admission of attorneys in this State,” we make our own independent assessment of the applicant’s present moral character based upon the records assembled before the Committee and the Board. Rule 5(d)(3); Application of Hyland, 339 Md. at 536, 663 A.2d at 1316; In re Application of Charles M., 313 Md. 168, 178-80, 545 A.2d 7, 12 (1988); In re Application of K.B., 291 Md. 170, 177, 434 A.2d 541, 544 (1981); Application of Allan S., 282 Md. at 690-91, 387 A.2d at 276.

III. Discussion

Mr. Brown argues that he has rehabilitated himself since being convicted of bank fraud in 1990. He contends that his rehabilitation is demonstrated by the fact that, since his conviction, he has held two positions of trust involving the accounting for monies without incident, as well as completed his college education and put himself through law school. He also contends that three judges testified that he possesses the requisite moral character before the Board, two of whom supervised him, in addition to two members of the Maryland Bar, all of whom were aware of Mr. Brown’s federal conviction. Mr. Brown also points out that when the Bank approached him regarding the crime, he readily confessed and fully cooperated with the FBI’s investigation, and he did not contest his guilt, but rather pled guilty to the crime. Additionally, Mr. Brown asserts that he made restitution of $7,000.00 to $8,000.00 of the stolen monies to the Bank at the time of his conviction by turning over a key to a safe deposit box where he had placed some of the funds. Mr. Brown also contends that he has since made full restitution to the Bank. Mr. Brown argues that he has met his burden of proof and his admission should be granted. We disagree.

In the case sub jucbice, Mr. Brown was convicted of bank fraud, a crime of moral turpitude. See Attorney Grievance Commission v. Shaffer, 305 Md. 190, 196, 502 A.2d 502, 505 (1986). The conviction occurred over thirteen years ago, which, although is a “significant and substantial” passage of time, Application of A.T., 286 Md. at 515, 408 A.2d at 1028, it is also a significant period of time for Mr. Brown to have rehabilitated himself and established that he presently possesses good moral character. Mr. Brown has not, however, exploited that opportunity, as is evidenced by his dereliction in completing his court-ordered restitution, failure to disclose both his conviction and his termination from employment at Citizen’s Bank on his law school application, concealment of his term of incarceration on the resume that he attached to that application, and recent misrepresentation of himself as a lawyer.

Mr. Brown presents a complex labyrinth regarding whether he has completed the restitution ordered by a federal court over fifteen years ago. Although Mr. Brown claims to have completed restitution, there is no record of the $7,000 to $8,000 allegedly recovered from a safe deposit box in the federal presentence report or any federal probationary document, or with the Bank. Although Emmanuel Bailey, Mr. Brown’s manager at'the Bank, swore in an affidavit that he and Jerrilyn Taylor together recovered thousands of dollars, Ms. Taylor has disavowed those assertions. Whether Mr. Brown actually paid the $7,000 to $8,000 remains in issue; he has failed to carry his burden of proof with respect to this aspect of his rehabilitation.

In In re Application of Hyland, 339 Md. 521, 663 A.2d 1309 (1995), the applicant also failed to meet his burden of proof as to whether he had completed payment of court-ordered restitution and debts owed to the Internal Revenue Service. Prior to law school, the applicant pled guilty to fifteen counts of failure to remit sales taxes in violation of Pennsylvania state law and, in addition to a forty-five day prison term, was sentenced to pay restitution. He also failed to remit federal government employee income tax withholdings, thereby owing the Internal Revenue Service approximately $125,000 and significant penalties. We noted that failure to make restitution “is an important factor in assessing good moral character,” 339 Md. at 535, 663 A.2d at 1316, and that,

[gjiven the duties that attorneys are ordinarily required to perform, we think that the applicant’s failure to carry out his significant legal obligation to satisfy his tax debt to the federal government and the Commonwealth of Pennsylvania is connected to his fitness to practice law. This conduct reflects adversely on the applicant’s personal commitment to the proper administration of justice, as well as his honesty and truthfulness.

Id. at 538, 663 A.2d at 1317. In conclusion, we found that:

[T]he applicant has failed to satisfy his burden that he presently possesses those qualities that comprise good moral character necessary for the practice of law.... We believe the record shows that the applicant does not appreciate the fiduciary responsibility incumbent upon an attorney when entrusted with the monies of another person. He does not appreciate the analogy between the tax obligations and the client trust account responsibilities....

We believe that the applicant’s failure to honor his financial obligations evidences a disregard of a legal obligation and reflects adversely on his fitness to practice law.

Id. at 536, 663 A.2d at 1316. Accordingly, we denied the application.

With respect to the many significant lapses of truthfulness related to Mr. Brown’s law school application, it is a given that good moral character includes truthfulness and candor, and absolute candor is a requisite of admission to the Maryland Bar. See Application of Hyland, 339 Md. at 535-36, 663 A.2d at 1315-16; Application of K.B., 291 Md. at 181, 434 A.2d at 546; Application of Allan S., 282 Md. at 689, 387 A.2d at 275. In 1999, Mr. Brown responded in the negative to the questions on his law school application asking whether he had ever been charged with, arrested for, or convicted of a violation of law, and whether he had ever been terminated from employment. Although Mr. Brown has alleged that he was advised by his Public Defender that his conviction was expunged, the same Public Defender has disavowed this allegation. Also, the alleged expungement does not explain Mr. Brown’s lack of candor regarding his termination from employment with Citizen’s Bank, for which he has offered no explanation.

Mr. Brown’s integrity is further impugned by the fact that he also concealed his incarceration on the resume that he attached to his law school application by affirmatively stating that he was employed during the same period. Although during oral argument -before this Court, Mr. Brown’s attorney represented that Mr. Brown did not intentionally misrepresent his dates of employment to conceal his incarceration because “in updating the resumes, the dates got confused” and a “clerical error” occurred, it is difficult, if not impossible, to believe that anyone could forget that he spent ten months in jail.

This Court has denied admission of applicants who, like Mr. Brown, through their actions, have failed to demonstrate post-conviction rehabilitation. In In re Application of K.B., 291 Md. 170, 434 A.2d 541 (1981), this Court denied the application of a candidate who disclosed on his Bar application that he had committed bigamy but never faced criminal charges for the offense, who, two weeks after filing that application, became involved in a mail fraud scheme, and who, the day after he took his first bar examination, opened a department store credit card under a fictitious name. In denying the application, the Court opined:

In weighing the evidence of rehabilitation ... it must be recognized that we deal here with a continuous course of criminal activity which was perpetrated by a mature adult. K.B. was 28 and 29 years of age when the fraud scheme was in effect. At age 21 he had become embroiled in the bigamous marriage, but he told the Character Committee in his application filed when he was 28 years old, that he had learned his lesson as a result of that earlier experience. Obviously he did not. We must further recognize that the continuous course of criminal activity occurred while K. B was in his senior year of law school and after his completion of law school studies. He had the benefit of four years of exposure to the ethics and traditions of the profession.

Id. at 180, 434 A.2d at 546. Likewise, in the case sub judice, Mr. Brown’s actions demonstrate a continuous course of dishonesty which negates his claim of rehabilitation.

In fact, as recently as 2004, Mr. Brown continued to be disingenuous when he chose to identify himself as a lawyer to Ms. Bruce at SunTrust Bank when attempting to get information relevant to completion of his restitution. While admitting that this action displayed' a complete lack of candor, Mr. Brown claims that he made the misrepresentation out of sheer frustration in trying to get Ms. Bruce to return his phone calls. Mr. Brown’s actions not only implicate those concerns reflected in Section 10-601 of the Business Occupations and Professions Article, which prohibits the unauthorized practice of law,⁹ but his decision to hold himself out as a lawyer in order to gain an advantage in obtaining information conflicts with his claim of being rehabilitated. It is understandable that Mr. Brown wishes to put his conviction behind him and move on to become a Maryland lawyer; however, misrepresenting his status only reflects poorly upon his present moral character.

Conclusion

Therefore, although we give great weight to the Board’s determination, albeit in a four-to-three decision, our independent review of the record leads us to conclude that Mr. Brown has failed to meet his burden of proving that he is fully and completely rehabilitated, such that he presently possesses the good moral character and fitness required for admission to the Bar of Maryland. Accordingly, Mr. Brown’s application is denied.

IT IS SO ORDERED.

1 . Rule 5(a) of the Maryland Rules Governing Admission to the Bar states in pertinent part:

(a) Burden of proof. The applicant bears the burden of proving ... the applicant’s good moral character and fitness for the practice of law.

Md. Rule 5 (2004).

Hereinafter all references to a rule or the rules are to the Rules Governing Admission to the Bar of Maryland in effect in 2004.

2 . In 1997, Citizen’s Bank was acquired by Crestar Bank, which was later acquired by SunTrust Bank in 1998.

3 . Rule 2 provides in pertinent part:

(a) By Application. A person who meets the requirements of Rules 3 and 4 may apply for admission to the Bar of this State by filing an application for admission, accompanied by the prescribed fee, with the Board.

4 . Rule 5(b) provides in relevant part:

Investigation and report of character committee. (1) On receipt of a character questionnaire forwarded by the Board pursuant to Rule 2(d), the Character Committee shall (a) through one of its members, personally interview the applicant, (b) verify the facts stated in the questionnaire, contact the application’s references, and make any further investigation it finds necessary or desirable, (c) evaluate the applicant's character and fitness for the practice of law, and (d) transmit to the Board a report of its investigation and a recommendation as to the approval or denial of the application for admission.

5 . Rule 5(b)(2) provides in pertinent part:

If the Committee concludes that there may be grounds for recommending denial of the application, it shall notify the applicant and schedule a hearing. The hearing shall be conducted on the record and the applicant shall have the right to testify, to present witnesses, and to be represented by counsel.

6 . The record before the Committee does not address whether the Circuit Court Judge who submitted a letter in support of Mr. Brown’s admission was aware at the time of the hearing of Mr. Brown's failure to complete restitution and lack of disclosure on his law school application.

7 . Rule 5(c) provides in relevant part:

Hearing by board. If the Board concludes after review of the Committee's report and the transcript that there may be grounds for recommending denial of the application, it shall promptly afford the applicant the opportunity for a hearing on the record made before the Committee.

8 . Rule 5(c) and (d) provide in relevant part:

(c) Hearing by board. ... If the Board decides to recommend denial of the application in its report to the Court, the Board shall first give the applicant an opportunity to withdraw the application. If the applicant withdraws the application, the Board shall retain the records. Otherwise, it shall transmit to the Court a report of its proceedings and a recommendation as to the approval or denial of the application together with all papers relating to the matter.

(d) Review by Court. (1) If the applicant elects not to withdraw the application, after the Board submits its report and adverse recommendation the Court shall require the applicant to show cause why the application should not be denied.

(2) If the Board recommends approval of the application contrary to an adverse recommendation by the Committee, within 30 days after the filing of the Board's report the Committee may file with the Court exceptions to the Board’s recommendation. The Committee shall mail copies of its exceptions to the applicant and the Board.

(3) Proceedings in the Court under this section shall be on the records made before the Character Committee and the Board. If the Court denies the application, the Board shall retain the records.

9 . Section 10-601 (a) provides in pertinent part:

Unauthorized practice of law

(a) In general.—Except as otherwise provided by law, a person may not practice, attempt to practice, or offer to practice law in the State unless admitted to the Bar.

Md.Code (2000, 2004 Repl.Vol.), § 10-601(a) of the Business Occupations and Professions Article.