Matter of GLS , 586 F. Supp. 375 ( 1984 )

MEMORANDUM AND RECOMMENDATION

G.L.S. has applied for admission to the Bar of the United States District Court for the District of Maryland. In his application for admission, he stated that in January, 1968, he was convicted of bank robbery in this Court. On January 23, 1984, a hearing was held before a three-judge panel to determine whether G.L.S. meets the criteria for admission.¹

All federal courts have the power to establish requirements for admission to practice before the court. See, e.g., Theard v. United States, 354 U.S. 278, 281, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957); 28 U.S.C. § 1654, § 2071; Fed.R.Civ.P. 83. In exercising its power, this Court promulgated Local Rule 2 which reads in pertinent part:

“It shall be requisite for the admission of any person to practice in this Court that such person shall make written application and be sponsored by a member of the Bar of this Court and shall satisfy the Court that he or she is a member in good standing of the Bar of any Court of the United States, or the highest Court of any State, and that his or her private and professional character is good.”

It is undisputed that G.L.S. has filed a written application; is sponsored by a member of the Bar of this Court; and is a member in good standing of the Bar of the Court of Appeals of Maryland. The question in this case is whether G.L.S. possesses good private and professional character.

Factual Background

The facts of this case are set forth in detail in In re G.L.S., 292 Md. 378, 439 A.2d 1107 (1982). They are summarized here.

After an honorable discharge from the United States Army in 1966, G.L.S. was employed until he was laid off in June, 1967. On October 9, 1967, he, along with two armed men, robbed the Lovettsville Branch of Farmers and Merchants National Bank of Hamilton in Lovettsville, Virginia. G.L.S. pleaded guilty in this Court to the charge of armed robbery and was sentenced to ten years in prison. He was 19 years old at the time. ■

He was incarcerated for a period of six years in several federal penal institutions. On May 17, 1974, he was released on parole.

Upon his release, he enrolled in Morgan State College from which he later received, with honors, a degree in political science. While attending Morgan State, he was married. His parole was successfully terminated approximately 13 months before his sentence expired.

In 1977, he was admitted to the University of Maryland School of Law, having disclosed to the school his conviction for bank robbery. After graduation in 1980, he applied for admission to the Bar of Maryland. The application required G.L.S. to list every place of residence for the previous ten years. He did not list any residence or address for the years he was incarcerated. The application also called for a complete record of all criminal proceedings to which he was a party. In response, the applicant wrote: “11/67 — U.S. Dist. Ct. for the District of Maryland.” He did not describe the nature of the proceedings or the disposition of the case.

After an interview with G.L.S., a member of the Character Committee for the Eighth Judicial Circuit refused to recommend him for admission to the Bar and suggested a full committee review of the case. After a hearing of the Character Committee, which recommended G.L.S. for admission, the State Board of Law Examiners again conducted a full hearing. The State Board also recommended that he be admitted to the Bar. The Court of Appeals of Maryland agreed with the State Board’s determination and ordered that G.L.S. be admitted to the Bar upon successful completion of the requisite bar examination. In re G.L.S., 292 Md. at 398, 439 A.2d 1107. This requirement was met when G.L.S. passed the February, 1983 bar examination.

Legal Analysis

It is well accepted that the highest standards of integrity and conduct must be met before a lawyer can be admitted to the bar of this, or any, court.

“It is a fair characterization of the lawyer’s responsibility in our society that he stands ‘as a shield’ ... in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral character.’ ”

Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 77 S.Ct. 752, 760, 1 L.Ed.2d 796 (1957) (Frankfurter, J., concurring). Of course, “the profession of an attorney is of great importance to an individual ____ The right to exercise it ought not to be lightly or capriciously taken from him. [But] it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved.” In re Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert. denied, 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975), citing Ex Parte Burr, 22 U.S. 529, 529-30, 6 L.Ed. 152 (1824) (Marshall, C.J.).

The Court of Appeals of Maryland has considered the issue of this applicant’s moral character and has found him fit to become a member of the Bar of that Court. In re G.L.S., 292 Md. at 398, 439 A.2d 1107. Although “admission to practice before a federal court is derivative from membership in a state bar, the federal courts maintain independent control over admission, discipline, and disbarment of attorneys in the federal courts.” Galahad v. Weinshienk, 555 F.Supp. 1201, 1211 n. 15 (D.Colo.1983); see also Brooks v. Laws, 208 F.2d 18, 22 (D.C.Cir.1953); Petition of Merry Queen Transfer Corp., 269 F.Supp. 812, 813 (E.D.N.Y.1967); Lark v. West, 182 F.Supp. 794, 796 (D.D.C.1960), aff'd, 289 F.2d 898 (D.C.Cir.1961), cert. denied, 368 U.S. 865, 82 S.Ct. 114, 7 L.Ed.2d 63 (1961). Therefore, admission to the Bar of the highest court of Maryland does not automatically require admission to the Bar of this Court.

In its decision in In re Braverman, 549 F.2d 913 (4th Cir.1976), the Fourth Circuit recognized the importance “of symmetry in the standards of qualification of coordinate courts in the same state.” Id. at 914. That court said because “ ‘[t]here is no federal procedure for examining applicants either as to legal ability or moral character ... reliance is placed on prior admission to the bar of a state supreme court.’ ” Id. at 921 citing In re Dreier, 258 F.2d 68, 69 (3d Cir.1958). In expressing concern over the effect of disparate treatment in admissions to the bars of coordinate courts, the court noted that disparate treatment would result in “ ‘confusion in the minds of the public, which justifiably may speculate why an attorney not qualified to practice in a federal court has sufficient moral character to practice in the state court.’ ” Id. at 921 citing In re Abrams, 521 F.2d 1094, 1106 (3d Cir.1975).

Although we recognize the value of symmetry in the admissions decisions of coordinate courts, complete symmetry would divest this Court of the authority granted to it by statute to establish appropriate standards for its bar. If this Court is to exercise the power vested in it by statute, 28 U.S.C. § 1654, § 2071, and recognized by case law' and commentators, see, e.g., Theard v. United States, 354 U.S. at 281, 77 S.Ct. at 1276; In re Roberts, 682 F.2d 105, 109 (3d 1982); Sanders v. Russell, 401 F.2d 241, 245 (5th Cir.1968); Cheatham, The Reach of Federal Action Over the Profession of Law, 18 Stan.L.Rev. 1288, 1289 (1966), the interest of symmetry must be balanced against the interest of the public sought to be protected through the independent control of this Court over admissions to its bar.

We do not read Braverman to require complete deference in all circumstances to a state court’s decision to admit an applicant to its bar. In fact, when the Fourth Circuit Court of Appeals remanded Braver-man with instructions to admit Mr. Braver-man to practice in this Court, it did so “because of a proper deference to the considered judgment of the coordinate Maryland Court of Appeals.” In re Braverman, 549 F.2d at 921 (emphasis supplied). In the view of this Court, the requirement of “proper deference” strikes a balance between the need for symmetry and the independent authority of this Court to establish standards for its bar. Proper deference, we believe, requires this Court to look closely at the state court decision granting or denying admittance to the state bar, to assess the reasons given for the decision, and to take into consideration whether the opinion was or was not unanimously rendered and, as well, to examine the mechanisms available to this Court, if any, by which an independent investigation as to the moral character of an applicant might be conducted. Only after such consideration, we believe, is deference proper.

Thus, this Court observes that, unlike the Braverman case in which the Maryland Court of Appeals in a virtually unanimous decision,² based on uncontroverted evidence of Mr. Braverman’s rehabilitation, readmitted Mr. Braverman to the Bar of Maryland, In re Braverman, 271 Md. 196, 200, 203, 316 A.2d 246 (1974), the case of G.L.S. comes to this Court in a different posture. The Maryland Court of Appeals handed down a 4-3 decision to admit G.L.S. The evidence of the applicant’s moral character was not uncontroverted. The majority felt that the crime in question was a single, isolated incident in the life of G.L.S. and that he had shown remorse for the crime, but the majority also recognized that G.L.S. failed to provide complete information on his bar application. Id. 292 Md. at 397, 439 A.2d 1107. The majority, over a strong dissent, decided to admit the applicant to the bar. Id. at 398, 439 A.2d 1107.

The dissenting members of the court answered an emphatic “no” to the question of whether G.L.S. should become a member of the Maryland Bar. They pointed not only to the severity of the crime, but to evidence of prison disciplinary problems with G.L.S., and to his lack of candor on the bar application form. Id. at 401-02, 439 A.2d 1107. Given the divergent views of the members of the Maryland Court of Appeals as to this applicant’s moral character, this Court believes that the interests of symmetry are outweighed by the interests of this Court for independent control over admissions to its bar and that deference to the Maryland Court of Appeals would not here be appropriate.

It is indisputable that the high standards of character and conduct imposed on those who seek admittance to the bar are imposed for the protection of the public. See, e.g., Murphy v. State Board of Law Examiners, 429 F.Supp. 16, 18 (E.D.Pa.1977); In re Cason, 249 Ga. 806, 294 S.E.2d 520, 523 (Ga.1982); Pushinsky v. West Virginia Board of Law Examiners, 266 S.E.2d 444, 450 (W.Va.1980); Bar Association v. Marshall, 269 Md. 510, 518-19, 307 A.2d 677 (1963); In re Alpert, 269 Or. 508, 525 P.2d 1042, 1046 (1974); Comment, Discipline of Attorneys in Maryland, 35 Md.L.Rev. 236, 251-52 (1975).

It is as much to pay heed to the public’s perception of the bar as in recognition of an attorney’s weighty responsibility to the public that the Court must independently assess this applicant’s fitness to be a member of its bar. This Court believes that any doubt that the standard has been met must be resolved in favor of the public. New professions involve the type of responsibility to the public as the legal profession. “The attorney is entrusted with the life savings and investments of his clients. He becomes the guardian of the mentally deficient and potential savior of the accused. He is a fiduciary, a confidant, an advisor, and an advocate ____ Consequently, an attorney’s character must [be] beyond reproach.” State Bar Association v. Agnew, 271 Md. 543, 549, 318 A.2d 811 (1974).

In assessing this applicant’s private and professional character, this Court takes note of changes which have occurred in G.L.S.’s life since his conviction. As the Maryland court pointed out, “he ... change[d] from a person with no respect for the law to a person who wished to devote himself to the law.” In re G.L.S., 292 Md. at 398, 439 A.2d 1107. But doubt remains in the mind of this Court, doubts echoed by the dissent in In re G.L.S., that the applicant’s private and professional character is good.

It is undisputed that the applicant is a convicted federal felon and that he provided ambiguous answers about that fact in his application to the Maryland Bar. The ambiguity of those answers aside, the fact of a federal conviction weighs heavily against an applicant to this Bar.

In passing, this Court notes that a convicted, unpardoned felon is deprived of certain rights in this society. In many states, a convicted felon cannot hold public office. See Annot. 39 ALR3d 303 (1971) and cases cited therein. While he is not seeking to be an elected or appointed official, “[a]n attorney, we sometimes tend to forget, is an officer of the court.” Baird v. State Bar of Arizona, 401 U.S. 1, 21, 91 S.Ct. 702, 712, 27 L.Ed.2d 639 (1971) (Blackmun, J., dissenting). Furthermore, a convicted, unpardoned felon is disenfranchised under the laws of many states.³ See Richardson v. Ramirez, 418 U.S. 24, 56, 94 S.Ct. 2655, 2671, 41 L.Ed.2d 551 (1974) (California law disenfranchising unpardoned felons not unconstitutional), but see Flood v. Riggs, 145 Cal.Rptr. 573, 583, 145 Cal.Rptr. 573 (1978) (amended California law disenfranchises felon only when in prison or on parole). Further, an unpardoned felon cannot serve on a jury in Maryland, Md.Cts. & Jud.Proc.Code Ann. § 8-207(b)(5) or in a federal court, 28 U.S.C. § 1865(b)(5). As indicated in these other contexts, there is at least a rebuttable presumption that an applicant'to this bar, who is an unpardoned convicted felon, is not of good character. Therefore, because we have doubts concerning this applicant’s good character, doubts which we believe must be resolved in favor of the public,⁴ we cannot admit the applicant automatically to practice before this Court despite the fact that a bare majority of the Court of Appeals of Maryland found him morally fit to practice law in the state.

As a part of our analysis of our duty here, we have considered, as intimated in Braverman is desirable, the availability of federal procedures and mechanisms to investigate the private and professional character of G.L.S. and other similarly situated applicants for admission to our bar. While perhaps overlooked in Braverman by both this Court and the Fourth Circuit, there does exist a federal mechanism to investigate the private and professional character of convicted federal felons.

Specifically, in eases involving federal felons, this Court holds that the applicant must exhaust federal pardon procedures.⁵ Such exhaustion will provide this Court with an investigative mechanism it otherwise lacks.

By regulation, upon receipt of a pardon petition, the Attorney General of the United States must investigate the matter “as he may deem appropriate, using the services of, or obtaining reports from, appropriate officials and agencies of the Government.” 28 C.F.R. § 1.6 (1983). He is also required to make recommendations to the President whether favorable or unfavorable action is warranted. 28 C.F.R. § 1.6. Although the files prepared during the investigative process are confidential, “they may be made available for inspection, in whole or part, when in the judgment of the Attorney General their disclosure is required by law or the ends of justice.” 28 C.F.R. § 1.5. Such disclosure likely would be warranted in cases like the one before this Court.

Although obtaining a pardon may not, in all cases, lead automatically to admission to the bar, see, e.g., Lark v. West, 289 F.2d 898 (D.C.Cir.1961), cert. denied, 368 U.S. 865, 82 S.Ct. 114, 7 L.Ed.2d 63 (1961); Annot., 88 ALR3d 193, 200 (1978), it will be strong evidence to rebut the presumption that a convicted federal felon is not of good private and professional character. In addition, the information gained in the process of investigation of the pardon application will aid this Court in its independent assessment of the character of applicants to its bar under these circumstances to assure that only a “proper deference” is given to the state court’s determination of fitness.

In conclusion, the undersigned Judges, constituting the three-judge panel, recommend to the full Court that federal convicted felons must apply for and exhaust the pardon procedures of the Department of Justice prior to applying for admission to the Bar of this Court and that the application of G.L.S.⁶ for admission to the Bar of this Court be denied for the reasons set forth herein.

Before WATKINS and NORTHROP, Senior District Judges, and HARVEY, MILLER, YOUNG, MURRAY, RAMSEY, BLACK, and HARGROVE, District Judges.

ORDER

The matter of whether G.L.S. meets the criteria for admission to the Bar of this Court having been referred to Judges Miller, Murray, and Black as a panel of the Court; and

The panel having conducted a hearing on January 23, 1984 and having submitted to the full Court its “Memorandum and Recommendation” to the effect that G.L.S. is an unpardoned federal felon and that his application for admission to the Bar of this Court should be denied at this time; and

The opinion of the panel in support of its Recommendation having been fully considered, it is this 16th day of May, 1984, by the United States District Court for the District of Maryland,

ORDERED that the application for admission to the Bar of this Court by G.L.S. be, and is hereby, DENIED without prejudice to the right of the said G.L.S. to reapply for admission upon his exhaustion of pardon procedures of the United States Department of Justice.

1 . The applicant was sentenced by Judge Roszel C. Thomsen, a member of this Court’s Disciplinary Committee. Judge Thomsen took no part in the consideration or decision in this matter.

2 . Only Judge Smith dissented in the decision to reinstate Mr. Braverman for the reason that he showed no remorse for his crime. In re Braverman, 271 Md. 196, 221, 230, 316 A.2d 246 (1974) (Smith, J., dissenting).

3 . This Court is cognizant of the fact that Maryland has not deprived G.L.S. of the present right to vote. A first conviction “for theft or other infamous crime" deprives a person of the right to vote only during the term of the sentence, probation, or parole. Md.Code Ann., Art. 33, § 3-4(c) (1983). A second conviction disenfranchises an unpardoned felon permanently. Id.

4 . We believe that, although the public may perceive an anomaly to be created when concurrent courts disagree as to an applicant’s fitness to practice in their courts, the public is best served by an independent assessment of an applicant’s character in each court. The public might find it even more anomalous that a federal felon, who is disqualified by statute from serving on a federal jury, is allowed automatically to become an officer of the federal court as an attorney.

5 . The President has the power to grant pardons under the United States Constitution, Art. II, § 2.

“Persons seeking Executive clemency by pardon, reprieve, commutation of sentence or remission of fine shall execute formal petitions therefor. The petitions shall be addressed to the President of the United States and shall be submitted to the Pardon Attorney, Department of Justice, Washington, D.C. 20530, except for petitions relating to military offenses. Petitions and other required forms may be obtained from the Pardon Attorney.”

28 C.F.R. § 1.1 (1983).

"No petition for pardon should be filed until the expiration of a waiting period of at least five years subsequent to the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years subsequent to the date of the conviction of the petitioner. In some cases, such as those involving violent crimes, violation of narcotic laws, gun control laws, income tax laws, perjury, violation of public trust involving personal dishonesty, fraud involving substantial sums of money, violations involving organized crime, or other crimes of a serious nature, no petition should be filed until the expiration of a waiting period of seven years. The waiting period may be waived in cases of aliens seeking a pardon to avert deportation. Generally, no petition should be submitted by a person who is on probation or parole.”

28 C.F.R. § 1.2 (1983).

6 . The full name of G.L.S. is filed under seal in the court file in this matter.