In Re the Application of Allan S.

387 A.2d 271, 282 Md. 683, 1978 Md. LEXIS 398

• Court: Court of Appeals of Maryland
• Decided: June 6, 1978
• Status: Published

Opinions

Murphy, C. J.,

delivered the opinion of the Court. Smith, Digges and Orth, JJ., dissent and Digges, J., filed a dissenting opinion in which Smith and Orth, JJ., concur at page 693 infra.

Whether the applicant in this case possesses the requisite moral character that would justify his admission to the Bar of Maryland is the issue before us for determination.

Rule 2 c 2 of the Rules Governing Admission to the Bar of Maryland requires every applicant who registers to take the bar examination to complete and file with the State Board of Law Examiners a Character Questionnaire “designed to elicit from [him] information concerning such of his personal history and previous conduct as may throw light upon his moral character fitness for Bar membership.” The Board is required to refer the questionnaire to a Character Committee, created by Rule 4 a, in the judicial circuit in which the applicant resides. The Committee is enjoined by Rule 4 b:

“promptly, through one or more of its members [to] (i) personally interview the applicant; (ii) verify the facts stated in the Character Questionnaire, including the fact of his Maryland domicile, contact the references therein given and make such further investigation as it may deem desirable or necessary; (iii) consider the character and fitness of the applicant to be admitted to the Bar; and (iv) transmit to the Board a report of its investigation and its recommendation as to the applicant’s character, fitness and standing to be admitted to the Bar.”

Upon receipt of the Character Committee’s report, the Board may find “because of matters reported to it by the Committee or for any other reason ... that there apparently exist proper grounds for disapproval of [the] application.” Rule 4 c. If the Board recommends that an adverse report should be made, and the applicant refuses to withdraw his application, Rule 4 c directs that this Court “shall require the applicant to show cause why his application should not be denied.” The rule provides that proceedings before us “shall be heard ... upon the records made by the Character Committee and the Board.” Rule 2 provides that the applicant “shall at all times have the burden of proving his good moral character before the Character Committee, the Board and the Court....”¹

Consistent with this procedure, the applicant in the present case submitted a completed Character Questionnaire to the Board on January 23, 1976, and it was promptly referred for investigation to the Character Committee. In his questionnaire the applicant revealed that he had been arrested on two occasions, once in 1966 for stealing a bottle of rum from a supermarket and again in 1971 for stealing a tape measure.

The Character Committee, all five members being present, held an evidentiary hearing to determine the applicant’s moral character fitness for admission to the Bar. After several witnesses had testified as to the applicant’s good moral character, the applicant testified on his own behalf. He said he entered college at the age of 16. In June of 1966, during his junior year when he was 19 years old, the applicant met two young women while traveling on a vacation trip in California with his college roommate. On a “dare,” and to impress the young women, the applicant took a bottle of rum from a supermarket and concealed it under his shirt. He was caught and charged with petty theft. He obtained counsel and the case was later dismissed. The applicant readily admitted his guilt of the offense.

The applicant entered law school at the age of 20. At that time he had strong feelings against the Vietnam War and did not want to enter the army. He said he was disillusioned that the truth was not being told to the American people. After his first year of law school, he left the country and entered a medical school in Spain; this entitled him to an automatic deferment from the draft. In less than a year, however, he returned to this country, resigned to the fact that he would be drafted into the army. He received a high lottery number in the draft and thereafter reentered law school. His disillusionment with the Vietnam War and his cynicism about American society and justice continued unabated. He said he lacked respect for American institutions, was opposed to capitalism, the Dow Chemical Company, bombs, and the like. In May of 1971, during his senior year in law school, the applicant participated in the so-called May Day demonstrations in Washington, D.C. Along with many other demonstrators, he was picked up by the police, briefly confined, but not placed in an arrest status.

He graduated from law school in June of 1971 at the age of 24. He said that the times were then confusing, the schools were in a state of upheaval and he thought he could never become a lawyer. He wanted to get away from the “establishment” and what he then considered false American ideals. He did not take the bar examination. Together with three other law school graduates, the applicant obtained access to a 30-acre farm in Montgomery County and they began a group or communal farm. It was their thought that they could make a contribution to society by starting a counter-culture characterized by growing organic vegetables, using neither pesticides nor fertilizers, and giving them to inner-city poor blacks and other needy persons.

The members of the communal farm began to build their own house. In October of 1971 the applicant went to a department store in Montgomery County where he took a measuring tape worth $4.99 and put it in his pocket. Although he had money to pay for it, his continuing cynicism and distaste for big institutional structures was such that he believed that stealing the tape was an act symbolic of his disrespect for the system. He was again caught and arrested for shoplifting. He employed counsel and the case was subsequently stetted and later dismissed. Applicant remained on the communal farm for almost three years. During this period, he learned carpentry skills and worked as a carpenter during the winter months. In June of 1974, the applicant left the farm and thereafter found work with various employers as a busboy, waiter, restaurant worker, carpenter, substitute teacher in a public school system and law clerk.

The applicant testified that he learned from his experience working on the farm that it was not possible to make everything work the way he thought it should. Shortly after his 1971 arrest, he began to undergo a transformation, a process of change which enabled him to have “a better understanding of justice”; he came to see how the law worked and that it was “really made for the people and to protect the people.” He decided in the late fall of 1975 to take the bar examination; he thought that if he became a lawyer, he could better uphold the laws of society while at the same time working for change.

The applicant passed the 1976 mid-winter bar examination. At the time of the hearing before the Character Committee in September of 1976, he was 29 years old. He was no longer rebellious, although he asserted a belief that a number of things in society should be corrected. He characterized his criminal transgressions as immature, idiotic and a mistake. He was contrite and remorseful; he freely admitted his guilt of the offenses, even though the charges were dismissed.

The Character Committee concluded from the evidence that the applicant was presently of good moral character and recommended his admission. It said:

“As a result of the hearing and a review of the records in the case, the Committee was of the opinion, due to the minor nature of the offenses and also due to the fact that the last incident occurred approximately five years ago and that the applicant since that time appears to have conducted himself properly, that the applicant should be recommended for admission to the Bar. The members of the Committee were polled and the decision of the Committee was unanimous.”

The State Board of Law Examiners after considering the report of the Character Committee decided that grounds existed for disapproval of the application. It therefore held an evidentiary hearing on February 23, 1977, at which virtually the same evidence adduced before the Character Committee was reintroduced before the Board; additionally, the transcript of the Character Committee hearing was incorporated and made a part of the Board’s proceedings. The Board recommended that the applicant not be admitted. After a detailed review of the evidence, it concluded:

“The Board is not convinced that the applicant possesses the character required of one who would practice law as a member of the Bar. We are not convinced that the two incidents in applicant’s life have contributed to that growth and maturity which would prevent further acts indicative of a lack of the requisite character. We are of the opinion that applicant learned little from the California arrest, which of itself should have prevented the Montgomery County arrest. Further, the Board is not persuaded of the sincerity of applicant in describing the act in Montgomery County as being a symbolic act, since his subsequent conduct was inconsistent with such a motivation. In this regard, the Board is of the opinion that in his testimony before the Board and before the Character Committee, applicant was less than candid. Finally, the Board is not convinced that applicant has demonstrated that he has been sufficiently rehabilitated to meet the standard for admission. He attempts to explain away the California: incident as a youthful prank and an attempt to impress new-found friends; he describes the Montgomery County incident as a symbolic act, the product of disaffection and rebellion during a difficult period of our nation’s history. At no point during his testimony did he admit clearly and convincingly that the acts were morally wrong and indefensible.

“The Board has considered the many letters of recommendation submitted by outstanding citizens; the testimony of his character witnesses ...; the unanimous opinion of the Character Committee of the Sixth Circuit; the testimony of the applicant on his own behalf, and the excellent argument of counsel. On the basis of the record before us, we conclude that the applicant has not met the burden of proving his good moral character as required by Rule 2d.”

Upon this Court falls the primary and ultimate responsibility for regulating the practice of law and the conduct and admission of attorneys in this State. Pub. Serv. Comm’n v. Hahn Transp., Inc., 253 Md. 571, 253 A. 2d 845 (1969). No duty in this respect ranks higher than our obligation to the public and to the legal profession to assure that applicants seeking original admission to the Bar possess the requisite moral character fitness to conduct the affairs of others both in and out of court. No attribute in a lawyer is more important than good moral character; indeed, it is absolutely essential to the preservation of our legal system and the integrity of the courts. See Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 318 A. 2d 811 (1974); Application of Alpert, 269 Or. 508, 525 P. 2d 1042 (1974); In re Monaghan, 126 Vt. 53, 222 A. 2d 665 (1966).

While there is no litmus test by which to determine whether an applicant for admission to the Bar possesses good moral character, we have said that no moral character qualification for Bar membership is more important than truthfulness and candor. Fellner v. Bar Ass’n, 213 Md. 243, 131 A. 2d 729 (1957); In re Meyerson, 190 Md. 671, 59 A. 2d 489 (1948). Where, as here, an applicant for admission to the Bar is shown to have committed a crime, the nature of the offense must be taken into consideration in determining whether his present moral character is good. Schware v. Board of Bar Examiners, 353 U. S. 232, 77 S. Ct. 752, 1 L.Ed.2d 796 (1957); In re Monaghan, supra. Although a prior conviction is not conclusive of a lack of present good moral character, particularly where the offense occurred a number of years previous to the applicant’s request for admission, it adds to his burden of establishing present good character by requiring convincing proof of his full and complete rehabilitation. See Application of Davis, 38 Ohio St. 2d 273, 313 N.E.2d 363 (1974); Application of Alpert, supra. Thus, a prior conviction must be taken into account in the overall measurement of character and considered in connection with other evidence of subsequent rehabilitation and present moral character. See In re Dreier, 258 F. 2d 68 (3rd Cir. 1958), and In re Florida Board of Bar Examiners, 183 So. 2d 688 (Fla. 1966). It is not without significance in this regard, as bearing upon moral fitness, that an applicant for admission to the bar refuses to admit his criminal conduct. Fellner v. Bar Ass’n, supra.

The ultimate test of present moral character, applicable to original admissions to the Bar, is whether, viewing the applicant’s character in the period subsequent to his misconduct, 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. See March v. Committee of Bar Examiners, 67 Cal. 2d 718, 433 P. 2d 191, 63 Cal. Rptr. 399 (1967). Cf. In re Braverman, 271 Md. 196, 316 A. 2d 246 (1974), and In re Meyerson, supra. That the absence of good moral character in the past is secondary to the existence of good moral character in the present is a cardinal principle in considering applications for original admission to the Bar. Application of Davis, supra; In re Monaghan, supra. See also Annot., 64 A.L.R.2d 301 (1959).

The Board’s recommendation that an applicant does not possess the requisite moral character fitness is, of course, entitled to great weight. In considering it, however, we do not apply the “substantial evidence” test applicable to court review of decisions of administrative agencies; rather, we make our own independent evaluation of the applicant’s present moral character based “upon the records made by the Character Committee and the Board.” Rule 4 c of the Rules Governing Admission to the Bar of Maryland. That provision was not contained in our rules when we said in Character Committee v. Mandras, 233 Md. 285, 196 A. 2d 630 (1964), that “the Board’s findings of fact are presumptively correct or at least entitled to weight where based upon the testimony of witnesses whose credibility may be in issue.” 233 Md. at 288.

At the heart of the Board’s recommendation that the applicant not be admitted to Bar membership is its determination that the explanation of his 1971 theft offense as being a symbolic act was neither sincere nor candid. It is evident from the Board’s opinion, considered in light of the colloquy between the applicant and the Board members at the hearing, that it simply did not believe that the act of theft was a symbolic one, for had it been the applicant would not have so readily sacrificed his principles by engaging counsel to extricate him from his trouble.

We think the Board has afforded controlling weight to that part of the applicant’s testimony that involves the 1971 theft and has given insufficient consideration to his present moral character and the evidence of his rehabilitation since the commission of that offense. It must be remembered that applicant’s first offense occurred in 1966, eleven years prior to the hearing before the Board; the 1971 offense occurred almost seven years prior to that hearing. While there can be no doubt that each of these offenses, though petty in nature, involved moral turpitude, the applicant readily admitted that he committed the crimes even though he was never tried or convicted of either of them. In this respect, he was most candid with the Board and we cannot agree, in view of the record in this case, that the applicant did not admit that his acts were morally wrong and indefensible. On the contrary, he did so repeatedly, both before the Character Committee and the Board, and we are satisfied that he is deeply distressed that he participated in such conduct.

In undertaking to prove his good moral character, the applicant was largely limited to the production of opinion evidence by those who know him. And letters attesting to his good character are entitled to respectful consideration. See Application of Guberman, 90 Ariz. 27, 363 P. 2d 617 (1961); Petition of Waters, 84 Nev. 712, 447 P. 2d 661 (1968); March v. Committee of Bar Examiners, supra. The record before us contains letters from a number of members of the legal and lay community, all to the effect that the applicant presently possesses the good moral character required of a member of the Maryland Bar. One letter, from a former Securities Commissioner of Maryland, for whom the applicant has worked as a law clerk, contains a particularly strong endorsement of his present good moral character and he testified to the same effect at the hearing. Other similarly impressive expressions of unqualified trust in applicant’s moral character are also in evidence.

There was no evidence in the record even remotely suggesting that the applicant has been involved in any misconduct in the years following the 1971 theft offense. The inference to be drawn is that during this interim period there has been a decided improvement in the applicant’s conduct and behavior. See In re Monaghan, supra.

That the Board could not — and indeed we cannot — understand the applicant’s prior misconduct in its social and historic context, as he asks that we do, does not mean that he did not genuinely entertain the beliefs which he then espoused. To conclude on such a flimsy foundation that the applicant lied to the Board as to his reason for committing the 1971 offense is likely to forever bar him from admission since, as we have said, no moral character qualification is more important than truthfulness and candor. Fellner v. Bar Ass'n, supra.

Giving due consideration to the nature of the applicant’s offenses, the time of their commission, the other circumstances involved, the fact that the burden rests at all times upon the applicant to prove his good moral character, and, most importantly, the convincing evidence of the applicant’s rehabilitation, we think he has established his present moral character fitness to be admitted to the Bar of this State.²

It is so ordered.

1 . Maryland Code (1957, 1976 Repl. Vol.) Art. 10, § 3 (c) provides, as a prerequisite to admission to the Bar of Maryland, that we find that the applicant is “of good moral character, worthy to be admitted----”

2 . We reached a different conclusion in the application of Michael M. for admission to the Bar of Maryland. The applicant there had been convicted of two theft offenses while in college; each was a misdemeanor, the first committed at age 18 and the second, for which he was sentenced to 20 days in jail, at age 24. The latter offense involved the theft of a clock radio valued at $51. When the applicant originally applied for admission to lav school, he answered “No” to the question: “Have you ever been convicted of or charged with any crime other than a minor traffic violation?” While the Board recommended the applicant’s admission, a divided Court rejected that recommendation without prejudice to reapply at a later time. Although evidence of the applicant’s rehabilitation was submitted on reapplication, the application was again denied, three judges dissenting.