In Re the Petition for Reinstatement to Practice Law of Braverman

316 A.2d 246, 271 Md. 196, 1974 Md. LEXIS 1034

• Court: Court of Appeals of Maryland
• Decided: March 1, 1974
• Docket: [Misc. Docket (Subtitle BV) No. 7, September Term, 1973.]
• Status: Published

Opinions

Murphy, C. J.,

delivered the opinion of the Court. Digges, J., concurs and filed a concurring opinion at page 212 infra. Barnes and Smith, JJ., dissent and Smith, J., filed a dissenting opinion in which Barnes, J., concurs at page 213 infra.

Maurice L. Braverman was admitted to the Maryland Bar on October 7, 1941, and, thereafter, practiced law in Baltimore City for eleven years. On April 1, 1952, he was convicted in the United States District Court for the District of Maryland of conspiracy to teach and advocate and to organize the overthrow of the government by force or violence in violation of § 2 of the Smith Act, 18 U.S.C.A. 2385. He was fined $1,000 and sentenced to imprisonment for three years. On appeal, his conviction was affirmed. Frankfeld v. United States, 198 F. 2d 679 (4th Cir., 1952) cert. den. 344 U. S. 922 (1952). As the result of a petition filed by the Bar Association of Baltimore City, Braverman was disbarred from the further practice of law by order of the Supreme Bench of Baltimore City dated June 28, 1955. On appeal, we affirmed the order of disbarment. Braverman v. Bar Association of Baltimore City, 209 Md. 328, 121 A. 2d 473 (1955). In 1957, Braverman was disbarred from federal practice. In re Braverman, 148 F. Supp. 56 (D. Md.). On May 21, 1973, eighteen years after his original disbarment, Braverman filed a petition in this Court for reinstatement to practice law. He alleged that during the period following his disbarment, he established his trustworthiness, demonstrated his good moral character, and was now worthy of reinstatement to the Maryland Bar. In his affidavit accompanying the petition, Braverman recited that his association with the Communist Party ceased shortly after his release from prison in 1955; that he had established and conducted a bookkeeping service catering to small business concerns in the Baltimore metropolitan area, an occupation he continues to this day; that he was active in the political mainstream of our country, seeking to influence the passage of legislation and the election of men and women to office who best represent his concerns; that for the past four years he served as Treasurer of the New Democratic Coalition, Fifth District Club; that he serves on the executive board of his community association; that he has become active in efforts to improve the criminal justice system, serving as President of the St. John’s Council on Criminal Justice, Inc.; that at the invitation of the Attorney General of the United States, he had recently participated in the four-day National Conference on Criminal Justice in Washington, D. C.; and that for the last two years, he has been teaching courses on poverty and criminal justice in the Baltimore Free University held on the Johns Hopkins University campus. Numerous communications from citizens, including many lawyers, personally acquainted with Braverman’s qualifications for readmission to the Maryland Bar were submitted in support of his petition for reinstatement.

On October 1, 1973, we ordered that Braverman’s petition for reinstatement to practice law in this State be referred for an evidentiary hearing to a three-judge panel comprised of Judges J. Harold Grady and David Ross of the Eighth Judicial Circuit of Maryland and Judge Mary Arabian of the District Court of Maryland. See In re Braverman, 269 Md. 661, 309 A. 2d 468. We directed that Braverman, the Maryland State Bar Association and the Bar Association of Baltimore City, and other proper parties, be permitted at the hearing to offer relevant and material evidence, to cross-examine, and fully argue the merits of the petition for reinstatement to determine whether, in light of the principles articulated in In re Meyerson, 190 Md. 671, 59 A. 2d 489 (1948) and Maryland State Bar Association v. Boone, 255 Md. 420, 258 A. 2d 438 (1969), Braverman had in the period following the rendering of the judgment of removal, become rehabilitated and a proper person to be admitted to the bar, viz., whether he could demonstrate “fitness acquired since unfitness was established by the disbarment.” 190 Md. at 687. We directed that in making its recommendation to us, the three-judge panel should evaluate, in particular, these four factors:

1. The nature and circumstances of Braverman’s original misconduct.

2. His subsequent conduct and reformation.

3. His present character.

4. His present qualifications and competence to practice law.

The evidentiary hearing was held before the three-judge panel on October 15, 1973. Braverman testified on his own behalf, as did a number of citizens, including lawyers, judges, educators, and state officials. Each gave testimony clearly tending to demonstrate that Braverman had rehabilitated himself in the period following his disbarment and had become a proper person to be admitted to the Bar of Maryland. No contrary testimony or evidence was adduced. The Maryland State Bar Association, acting through its Board of Governors, and after conducting its own investigation, unequivocally recommended that Braverman be readmitted to practice law in this State. The Bar Association of Baltimore City, acting through its President, told the three-judge panel that “there has not been a scintilla of evidence presented to the Executive Council of the Bar Association of anything derogatory about Mr. Braverman ... [and it had no] information that is contradictory to what these individuals [those persons testifying and writing letters on Braverman’s behalf] state about his character and his honesty and his trustworthiness since his release from prison and during the period subsequent to his release.”

The three-judge panel concluded that Braverman had established “by clear and convincing proof his fitness to practice law” and recommended that he be reinstated as a member of the Bar. The panel’s recommendation was supported by these observations and findings succinctly set forth in its opinion:

“NATURE AND CIRCUMSTANCES OF ORIGINAL MISCONDUCT

“The Court of Appeals in Braverman vs. Bar Association of Baltimore City, 209 Md. 328, found that the misconduct for which the Petitioner was disbarred consisted of his conviction of conspiracy to violate Section 2 of the Smith Act, that this conviction was one involving moral turpitude, and that these facts constituted sufficient cause of disbarment. In its per curiam opinion in the present proceedings [269 Md. 661, 309 A. 2d 468 (1973)] the Court of Appeals points out that this panel must proceed in its deliberation from the premise that Petitioner’s conviction above referred to is conclusive proof of his guilt of the crime of which he was convicted. Maryland Rules BV4 f 1 and BV9 d 4. Consequently, this panel cannot consider as having any effect Petitioner’s testimony before us that his conviction was founded on insufficient evidence and that he was innocent of the crime charged. Rather he remains a convicted, unpardoned felon.

“Proceeding from this restricted basis, what consideration can this panel give to the nature and circumstances of Petitioner’s original misconduct? We find relevant the position taken by the Maryland State Bar Association that Petitioner’s misconduct w’hich resulted in his conviction was largely political in nature and should be viewed in the light of present realities. Although we do not consider court decisions rendered after Petitioner’s conviction as undermining the conclusive proof of his guilt, we do consider as relevant the change in attitude which is evidenced by such decisions. We find it amply demonstrated that developments in the law have necessitated a change in judicial and prosecutorial attitude. We also believe that since Petitioner’s disbarment public acceptance of the change in legal attitude, public attention to civil rights generally and the right of dissent particularly, and public emphasis on detente with communist nations in our foreign affairs all have tempered the attitude of the public toward one in the Petitioner’s position. Great weight must also be given to the fact that Petitioner’s reinstatement is recommended by the Maryland State Bar Association representing the majority of attorneys practicing in this state.

“Considering today the nature and circumstances of the Petitioner’s misconduct, we conclude that his reinstatement would not be prejudicial to the administration of justice.

“PETITIONERS SUBSEQUENT CONDUCT AND REFORMATION

“The evidence produced by Petitioner concerning his conduct since disbarment satisfies us that not only has he not conspired to teach and advocate the violent overthrow of the government but that his subsequent disassociation from the Communist Party and disenchantment with communism as it exists in the Soviet Union have characterized his activity. We find that Petitioner’s evidence has overcome the weight of the facts adjudicated against him by his conviction, i.e., advocacy of violent overthrow, and that his activities of a political nature have been entirely within the mainstream of our system. In addition, no evidence to the contrary was presented.

“As to Petitioner’s reformation, the Baltimore Bar Association raises the philosophical question of how Petitioner has proven his reformation when he refuses to recognize the existence of any misconduct from which to reform. Since Petitioner is adamant in his belief in his innocence, he is consistent in not expressing any repentance. While he seems to hinder his cause by not taking what might be the easier way of confession and contrition, the intellectual honesty of his position must be recognized. Reform has been defined as: to change from worse to better, to bring from a bad to a good state. We believe Petitioner has demonstrated his reformation without an expression of contrition from him. Starting from the premise that his guilt was conclusively proven, we find his conduct since conviction to be a complete turnabout from that which resulted in his conviction. We find his conduct since conviction to be totally inconsistent with the probability of repetition of his previous misconduct. We believe this constitutes reformation as this term is used in the present proceedings.

“PETITIONER’S PRESENT CHARACTER

“We find the impressive and unchallenged evidence presented by Petitioner of his present good character clearly establishes his eligibility for reinstatement on this score.

“PETITIONER’S PRESENT COMPETENCY

“Evaluation of Petitioner’s present qualification and competence to practice law in the light of his long absence from the Bar presents an issue on which we find few guide lines. Petitioner’s admission to the Bar in 1941 presumes certification by the State Board of Law Examiners that he then possessed the requisite qualifications. No evidence was presented suggesting a lack of competence during the period when he was a member of the Bar from 1941 until 1955. Neither the Maryland Rules nor the statute prescribing the duties of the State Board of Law Examiners provide for reexamination of an applicant for reinstatement. It is difficult to distinguish Petitioner’s position from that of an attorney who once having been admitted to the Bar devotes himself to other pursuits for an extended period of time, such as military service, and after the passage of many years undertakes an active practice. Petitioner in his testimony outlined his activity in certain areas of criminal correctional law and his intention to become a volunteer intern with the Legal Aid Bureau of Baltimore, Inc. We believe that Petitioner exhibits a sound and responsible attitude by recognizing the need for refreshing his professional skills and by proposing a course by which he may accomplish this.

“We are mindful that every attorney is bound by Maryland Rule 1230 to conform to the Code of Professional Responsibility of the American Bar Association. Canon EC6-1 provides in part that an attorney * * * should accept employment only in matters which he is or intends to become competent to handle.

“We are persuaded that Petitioner will abide by the requirements of this Canon.”

The testimony offered by Braverman and by the numerous witnesses on his behalf in support of the recitations made in his petition, and accompanying affidavit, plainly justified the findings of the three-judge panel that Braverman’s present character is of a high order, that his conduct during the 18 years since his disbarment has been exemplary, that he disassociated himself from the Communist Party when he was released from prison in 1955 and never renewed his membership, that his activities and pursuits over the past 18 years have adequately demonstrated his reformation, and that he is presently competent to practice law. The more fundamental consideration, however, involves the nature and degree of Braverman’s original misconduct and the circumstances attending the offense. See In re Stump, 272 Ky. 593, 114 S.W.2d 1094 (1938), cited with approval in Meyerson.

As heretofore indicated, Braverman was convicted of conspiracy to violate § 2 of the Smith Act by knowingly and wilfully advocating and teaching the duty and necessity of the violent overthrow of the United States Government and organizing the Communist Party of the United States to teach and advocate such overthrow, with intent to bring about this result as speedily as circumstances would permit. In affirming Braverman’s conviction, the court in Frankfeld v. United States, supra, found no merit in the defendants’ contention that the trial judge submitted the case to the jury in such way as to permit the jury to convict them of conspiracy on the basis of mere membership in the Communist Party, without knowledge on their part of any criminal purpose in which the Party was engaged. The Frankfeld court held that the evidence adduced at the trial was sufficient to show that the Communist Party was engaged in a conspiracy, the object of which was the violent overthrow of the government. It found that there was legally sufficient evidence that Braverman, who had “ . . . served as a member of the District Committee of the party, had been a candidate for chairman of one of its meetings, had served as its attorney, was a member of its ‘white collar club’ and had conducted classes for it in his home . . .,” had joined that conspiracy with knowledge of its unlawful purposes.

Prior to the court’s decision in Frankfeld, the constitutionality of the Smith Act had been upheld by the Supreme Court in Dennis v. United States, 341 U. S. 494, 71 S. Ct. 857, 95 L.Ed. 1137 (1951). In that case, the Supreme Court concluded that the defendants’ conspiracy to organize the Communist Party to teach and advocate the violent overthrow of the government in violation of the Smith Act presented a “clear and present danger” of such an overthrow. The court approved the instructions given by the trial judge to the jury requiring that, before convictions could be returned, the jury had to find that each defendant had the specific intent to overthrow the government by force or violence as soon as circumstances would permit. The Court stated that since the Act was aimed at advocacy and not mere discussion, it did not prohibit academic discussions of Marxism-Leninism. It was not clear from Dennis, however, that the Act proscribed only advocacy of action, and not advocacy of the abstract doctrine of forcible overthrow.

Six years after its decision in Dennis (and five years after Frankfeld), the Supreme Court, in Yates v. United States, 354 U. S. 298, 77 S. Ct. 1064, 1 L.Ed.2d 1356 (1957), rejected the government’s theory that the defendants’ complicity in a conspiracy to teach and advocate the violent overthrow of the government could be shown solely by their active identification with the Party’s affairs. There, the Court stated that the record did not support a finding of illegal advocacy by the Party and that apart from such inadequacy “ ... it is difficult to perceive how the requisite specific intent to accomplish such overthrow could be deemed proved by a showing of mere membership or the holding of office in the Communist Party.” 354 U. S. at 331. In Scales v. United States, 367 U. S. 203, 81 S. Ct. 1469, 6 L.Ed.2d 782 (1961), the Court construed the “membership clause” of the Sinith Act which prohibited membership in an organization advocating the forceful overthrow of the government. It held that a defendant’s active membership in an organization which advocated such overthrow in the sense of “advocacy of action,” and his knowledge of that illegal advocacy, was not constitutionally sufficient to convict him of the offense in the absence of a showing of specific intent to overthrow the government by force and violence as soon as circumstances would permit. The Court stated that while all knowing association with a “technical conspiracy” may properly be the subject of criminal proscription, a similar prohibition of all knowing membership in a “quasi-political” organization would pose a real danger to legitimate political expression. Thus the Court held that a finding of such specific intent was necessary for conviction to ensure that “ . . . [T]he member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within the ban of the statute . . . .” 367 U. S. at 229.

It is clear then that the decisions of the Supreme Court since Dennis and Frankfeld have evidenced a growing concern for the protection of First Amendment rights, and have placed strict requirements upon the application of statutes proscribing activity involving elements of speech and association. See, e.g., Law Students Civil Rights Research Council v. Wadmond, 401 U. S. 154, 91 S. Ct. 720, 27 L. Ed. 2d 749 (1971); United States v. Robel, 389 U. S. 258, 88 S. Ct. 419, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U. S. 589, 87 S. Ct. 675, 17 L.Ed.2d 629 (1967); Elfbrandt v. Russell, 384 U. S. 11, 86 S. Ct. 1238, 16 L.Ed.2d 321 (1966). We agree with the Maryland State Bar Association that interpretations of the First Amendment now prevailing require that the government show more to obtain a conviction under the Smith Act than was necessary at the time of the Frankfeld decision. Braverman’s conviction was based essentially upon the same theory as that advanced by the government, but rejected in Yates — that a defendant’s participation in a conspiracy to violate the Smith Act could be shown by his active membership in the Communist Party. Although the jury instructions approved in Frankfeld were quite broad, and appear to meet the requirements imposed by subsequent cases, i.e., that advocacy of “action” is proscribed and that advocacy of an “abstract doctrine” of forcible overthrow is not; that the defendants must be “active members” with knowledge of the party’s illegal purpose; and that each defendant must have the specific intent to overthrow the government by force and violence as speedily as circumstances would permit — a serious question exists whether the evidence adduced against Braverman, apparently adequate to sustain his conviction under Dennis, would have been legally sufficient to support his conviction under the standards laid down in Yates and Scales. In finding the evidence legally sufficient to establish Braverman’s connection with the conspiracy engaged in by the Communist Party, and to support his conviction, theFrankfeld court stated:

“They [the defendants] were shown to be officers and teachers of the party occupying such positions with respect to its activities that the jury could well conclude that they necessarily had knowledge of the criminal purposes in which it was engaged ... It is well settled that persons who join a conspiracy with knowledge of its unlawful purposes make themselves parties thereto and are equally guilty with those who originated it.” 198 F. 2d at 686.

It was precisely this application of the “well established” prerequisites to a finding of complicity in a “technical conspiracy” that the Supreme Court refused to follow in Scales with respect to “quasi-political” organizations that have both legal and illegal aims. It required that a defendant have the specific intent to forcibly overthrow the government. Although Frankfeld followed Dennis in charging that the jury must find that the defendants had such an intent, it was not until Yates that the Court enunciated its view that the requisite specific intent could not be shown by “mere membership or the holding of office in the Communist Party.” Despite the court’s statement in Frankfeld that the case against Braverman “was not one of mere membership” in the Party depending upon “guilt by association,” it nevertheless found the evidence legally sufficient to support his conviction upon a showing that Braverman was an active member of the Party with knowledge of its illegal advocacy. Braverman’s activities, as summarized by the court in Frankfeld appear to reflect activity not amounting to “advocacy of action” under Yates and Scales.¹ Thus, it would seem apparent that Braverman’s activities with the Communist Party did not mount up to the requisite showing of “clear proof” of his specific intent to “accomplish the aims of the organization by resort to violence” required by subsequent decisions. See Scales, 367 U. S. at 229. We also note, as suggested by the Maryland State Bar Association, that the fact that all enforcement of the Smith Act has ceased indicates that convictions obtained under that Act, including Braverman’s, were related to “a particular time and condition” and as such his disbarment was in large measure a product of those times and conditions and must be viewed “in terms of present realities.”

We agree with the conclusion of the three-judge panel that “developments in the law have necessitated a change in judicial and prosecutorial attitude” and that a consideration of the nature and circumstances of Braverman’s original misconduct reveals that his reinstatement would not be prejudicial to the administration of justice. In so concluding, we are considerably influenced by the fact that the Maryland State Bar Association, acting in its capacity as “the formal [state-wide] entity of ‘the [legal] profession as a whole’ ... [having a] proper, direct and pervading interest” in disbarment and reinstatement proceedings, Maryland State Bar Association v. Boone, supra at 425, has recommended Braverman’s reinstatement, fully cognizant of its duty “to uphold the highest standards of professional conduct and to protect the public from imposition by the unfit ... practitioner,” In the Matter of Lombard, 242 Md. 202, 207, 218 A. 2d 208, 211 (1966). In its brief, the State Bar Association states that its recommendation is advanced “with complete understanding that Braverman was duly and fairly convicted of a Smith Act violation in 1952 . . . that all remedies by way of appeal were exhausted .. . [and that the] conviction is conclusive proof of his guilt [Rule BV4 f 1].” The Association states that while Braverman’s conviction was an adequate ground vel non for his disbarment, “the coalescence in the 1950’s of Braverman’s repudiation of communism and the government’s abandonment of the Smith Act indicate that the ‘time and conditions’ may now be ripe for his reinstatement.” The Association asserts that “it is only unique and unusual circumstances” which has prompted it to support the reinstatement petition. Although steadfastly maintaining that force and violence have always been “abhorrent” to his personal creed, Braverman acknowledges that he was convicted of belonging to the Communist Party prior to 1951 and being part of the conspiracy which was ascribed to such membership. But he urges that the “underlying characteristic” which resulted in his “being found guilty of moral turpitude has been cured.”

We noted in Boone (at footnote 1, p. 435) that consistent with the standards for reinstatement to practice law set forth in Meyerson, Drinker, Legal Ethics, pp. 49-50, states that while it was always possible that a disbarred lawyer could be reinstated, “this, . . . should almost never occur except where the court concludes that the disbarment was erroneous . . . [f]or a lawyer who has been found guilty of an act warranting disbarment to be reinstated justly creates an impression on the public which is very bad for the reputation of the bar, the conclusion being that this is because of friendship, pity, or political influence. . . .” Of course, as we pointed out in Meyerson, disbarment of an attorney does not operate as a permanent disability. Indeed, Maryland Rule BV9 b (adopted after the decision in Boone), which authorizes filing of petitions for reinstatement, requires that “facts [be set forth] showing that the Petitioner is rehabilitated and is otherwise entitled to the relief sought.” That the burden of establishing the averments of the petition is a heavy one is manifest from the provisions of Rule BV9 d 3 — “clear and convincing proof” must be shown by the Petitioner to support his petition for reinstatement. See also Maryland Code (1968 Repl. Vol.), Article 10, Section 22. We think Braverman has, in the eighteen years since his original disbarment, demonstrated his fitness to be reinstated to practice law by clear and convincing proof in accordance with the basic standards governing reinstatement petitions set forth in Meyerson and Boone; accordingly, we shall sign an order directing that Maurice L. Braverman be readmitted as a member of the Bar in good standing upon his subscribing, in open court, to the oath of attorneys required by Code, Article 10, § 10.

ORDER

The panel of Judges designated in the Order of this Court dated October 1, 1973, having recommended reinstatement of Maurice L. Braverman as a member of the Bar of Maryland, and a hearing having been held on said recommendation, it is, this 1st day of March, 1974, in accordance with the opinion of the Court filed this date, two Judges dissenting,

ORDERED, by the Court of Appeals of Maryland, that Maurice L. Braverman be, and he is hereby, reinstated as a member of the Bar of Maryland upon his subscribing, in open court, to the oath of attorneys required by Code, Article 10, sec. 10.

/%/ Robert C. Murphy

/s/ Frederick J. Singley, Jr.

/s/ J. Dudley Digges_

/s/ Irving A. Levine_

/s/ John C. Eldridge_

Filed: March 1,1974.

_/s/ James H. Norris, Jr._

Clerk, Court of Appeals of Maryland

1 . In Scales the court interpreted its earlier decision in Yates. It held that Yates made it clear that the following category of evidence was not in itself sufficient to show illegal advocacy: the teaching of Marxism-Leninism and the connected use of Marxist “classics” as text books; the official general resolutions and pronouncements of the Party at past conventions; dissemination of the Party’s general literature, including the standard outlines on Marxism; the Party’s history and organizational structure; the secrecy of meetings and the clandestine nature of the Party generally; statements by officials evidencing sympathy for and alliance with the USSR. The Court also stated that Tates indicated at least two patterns which were sufficient to show illegal advocacy: 1) The teaching of forceful overthrow, accompanied by directions as to the type of illegal action which must be taken when the time for revolution is reached; 2) and the teaching of forceful overthrow, accompanied by a contemporary though legal course of conduct for the specific purpose of rendering effective the later illegal activity which is advocated.