Application of Brown
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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket No. 10 September Term, 2005 IN THE MATTER OF THE APPLICATION OF EMSEAN L. BROWN FOR ADMISSION TO THE BAR OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Bell, C.J. Dissents. Filed: April 11, 2006 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. B rown pre sently does not possess the requisite moral character required to be admitted to the M aryland Bar. 1 I. Background In 1989, Em sean L. B rown, then 24, and an employee at th e Citizen s Bank of Maryland ( Bank ), 2 with knowledge of how it would be used, began providing customer information - spe cific ally, customers names, addresses, a ccount nu mbers, and balances - to Ramona Baldwin, not an employee of the bank, who used the information to obtain Maryland drivers licenses to ga in access to m onies from customer s accoun ts 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 1 Rule 5 (a) of the Maryland Rules Governing Admission to the Bar sta tes in pertinent pa rt: (a) Burden o f proof. The applicant bears the burden of proving . . . the applicant s good moral character and fitness for the practice of law. Md. Rule 5 (2 004). Hereinafter all reference s 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. employed at the Mo tor 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 wh ich M r. Brow n receiv ed. In 1990 the Bank discovered the scheme and termin ated Mr. B rown s e mploymen t. Mr. Brown subseque ntly confesse d to his invo lvement a nd pled gu ilty to the crime of bank fraud in the United States D istrict 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 m aking restitutio n payments a t this time. In February, 1999 M r. Brown applied to th e 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 surround ing the incid ent(s) and th e court s disposition of the charge(s). Have you ever been discharged from employment or the armed forces under conditions other than honorable? Mr. Brown , when ap plying for adm ission to the Maryland Bar, represented that he answered no to the first question because he thought his conviction had been expunged. 2 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. Add ition ally, 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 significan t length of time not in school or working, please explain. In response, Mr. Brown wrote, PLEASE SEE R ESUME, and attached a resume that listed him as having been employed with the Richard Leahy Corporation from February, 1990 through August, 1992, althou gh, in fact, Mr. Brow n actually had been incarcera ted 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 3 Rule 2 pro vides in per tinent part: (a) By A pplication. A person who meets the requirements of Rules 3 and 4 may apply fo r admission to the Bar o f this State by filing an application for admission, accompanied by the prescribed fee, with the Board. 3 regarding whether he had ever be en con victed o f a crim e. Mr. Bro wn did n ot 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 B ank or that h e had failed to disclose h is lapse in emplo yment his tory beca use of his inca rceratio n. Pursuant to Rule 5 (b )(1),4 Mr. Brow n s bar app lication w as forw arded to a mem ber of th e Cha racter C omm ittee. 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 a ffidavit, 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 betwe en the D ean, M r. Brown, and the Public Defender who had represented Mr. Brown when he was convicted. The Committee member subsequently recommended 4 Rule 5 (b) provides in relevant pa rt: Investigation and report of character committee. (1) On receipt of a character questionnaire forward ed by the Board pursuant to Rule 2 (d), the Character Committee shall (a) through one of its m embers, pe rsonally interview the applican t, (b) verify the facts stated in the questionnaire, contact the application s references, and make an y further investig ation 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. 4 that the Committee conduct a hearing regarding Mr. Bro wn s app lication pursu ant to Rule 5 (b)(2) 5 because there were grounds for denying his application; a hearing was held on September 26, 2004, at which Mr. Brown was represented by counsel. A Circuit Court Judge, for whom Mr. Brow n had clerked, testified on his b ehalf, and another C ircuit Court Judge submi tted a lette r in supp ort of h is admis sion. The Committee hearing record revealed that Mr. Brown first notified the law school of his convictio n in Novemb er, 2000, the first semester of M r. Brown s second year of law school, when M r. 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 a ssured him that his record would be expunged. Mr. Brown also alleged that at the time of the hearing the Univ ersity s website conta ined an ap plication that o nly 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. W ith 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 5 Rule 5 (b) (2) provide s in pertinent p art: If the Committee concludes that there may be grounds for recommending denial of the application, it shall notify the applicant and sche dule a hea ring. The h earing shall be conducted on the record and the applicant shall have the right to testify, to present w itnesses, and to be repres ented by cou nsel. 5 Business Law, and thus understood the distinction between a conviction and an arrest such that he knew that the law school application wa s soliciting the disclosure of both. Moreover, the Committee no ted that Mr. Brow n s Public Defender denied ever advising Mr. Brown that his reco rd wo uld be e xpung ed. 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 approxim ately $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 fo r 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 Comm ittee hearing a lso 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 throu gh contac t with SunTrust Bank when the hearing was scheduled in contemplation of h is admission to the Bar. Add ition ally, the Com mittee foun d that the C ircuit Court Judge who testified on Mr. Brow n 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 6 application or his failure to complete restitution.6 The Co mmittee de termined th at: 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 o f the crimin al incident on his Law School application, w hether in response t o t h e q u e s t i o n r e g a r d in g c r i m i n al 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. Howeve r, 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 rec omm ended that M r. Brow n s app lication to the Ba r be den ied. 6 The record before the Com mittee does not addres s whethe r the Circuit Court Judge who submitted a letter in support of Mr. Brown s admission was aware at the time of the hearing of M r. Brown s failure to complete restitution and lack of disclosure on his law school application. 7 Pursuant to Rule 5 (c),7 the State Board of Law Examiners then gave Mr. Brown an opportun ity to be heard on April 15, 2005. Mr. Brown appeared with counsel and presented five witnesses, all of whom had worked w ith 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 w ith 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 jo bs; a classm ate from law school; a classmate from college and a classmate from high school, in ad dition 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, op ened up th e safe dep osit box and rec overed thousa nds of dollars. He also supplied copies of letters that he had penned to Dana Bruce , paraleg al with S unTru st Bank , affirm ing that M r. 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, 7 Rule 5 (c) p rovides in re levant 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 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 als o reflected that in Octobe r of 2004, M r. Brown telephoned Ms. Dana Bruce, a paralegal with SunTrust Bank, to discuss completion of his restitution, and that he in itially identif ied him self to h er as an attorney. The Board was unable to ascertain w hether M r. Brown had satisfied his obligation to make restitution, which Mr. Brown had calculated to be $3,650 in Septem ber, 2004, and w hich he paid in Oc tober, 2004, o r wheth er a safe depos it box h ad bee n foun d. 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 sch ool 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 tha t, unlike a con viction of a state crime, a federal conviction requires a presidential pardon for expungement, which he had not received, thereby requiring disclosu re of the convic tion to th e law sc hool. Add ition ally, although within the record of the Committee, the Board addressed, for the first time, the fact that Mr. Brown had not revealed his incarcera tion on the re sume that h e attached to his law school application by indicating that he was employed during that time. The Board re port included Mr. B rown s 9 statement that it was no t his intention in attaching the inaccurate resume to make the law schoo l believe that he n ever w as incar cerated . 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. More over, none of M r. Brown s employers p rior to or during law school was aware of his conviction. To this end, Mr. B rown 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 B oard de cided b y a majori ty of fou r to three that, [w]hile the Board believes he was opportun istic with regard to his law school application, restitution and his dealings with Ms. Bruce at SunTru st Bank, the majority does not believe these incidents to be determinative with regard to the applicant s rehabilitation. The crime for which th e applicant was con victed 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 m arried with two children. He has no record of committing further crimes. The record reflects the applicant s remorse for h is actions of fifteen years 10 ago. The applicant has presented positive testimony regarding his work and integrity, including two Judges fro m Circuit Court in Montgomery County, one from th e Circuit Court for Baltimore City and two members of the Maryland Bar. His employment references indicate a conscientious work record and did not indicate crimina l activity. Pursuant to Rules 5 (c) and (d), 8 a show c ause hearin g was he ld before th is Court to determ ine wh ether it sh ould ac cept the Board s recom mend ation. II. Standard of Review 8 Rule 5 (c) a nd (d) prov ide in relevan t part: (c) Hearing by board. . . . If the Boa rd 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 . Otherw ise, it shall transm it to the Court a report of its proceedings and a recommendation as to the approval or denial of the application together w ith all papers relating to the matter. (d) Review by Cou rt. (1) If the app licant elects not to withdraw the application, after the Board submits its report and adverse recommendation the Court sha ll require the a pplicant 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. 11 The issue before us is whether M r. 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) (Frank furter, J., c oncurr ing)). When an applican t has engag ed in crimin al 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 M d. 507, 514, 408 A.2 d 1023, 1 027 (197 9); 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 existen ce of g ood m oral cha racter in the pres ent, Application of Allan S., 282 Md. at 691, 387 A.2d at 27 5, and the pa st 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 12 involved; the fact that th e burden rests upon th e applicant to prove his good moral cha racter; and then , mos t imp ortantly, wheth er the ap plicant h as been rehabili tated. In re Application of James G., 296 Md. 310, 316-17, 462 A.2 d 1198, 1 202 (198 3); Application of Allan S., 282 Md. a t 692, 38 7 A.2d at 277. Although the Board s recommendation to admit Mr. Brown is entitled to great weig ht, 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 Comm ittee and the B oard. 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 (198 8); In Re Application of K.B., 291 Md. 170 , 177, 434 A.2d 5 41, 544 (1981); Application of Allan S., 282 M d. at 690 -91, 38 7 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 demon strated by the fa ct that, since his conviction, he has he ld 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 th e requisite moral character befo re 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 13 when the Bank approached him regard ing the crim e, he readily con fessed an d fully cooperated with the F BI s investig ation, and h e did not co ntest his guilt, bu t rather pled g uilty to the crime. A dditionally, Mr . Brown asserts that he made restitu tion of $7,0 00.00 to $8,000.00 of the stolen monies to th e Bank a t the time of h is 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 judic e, 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 su bstantia l passa ge of tim e, 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. Brow n has not, howev er, exploited that opportunity, as is evidenced by his dereliction in completing his court-ordered restitution, failure to disc lose both h is 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 prese nts a complex labyrinth regarding whether he has completed the restitution ordered by a federal co urt over fifte en years ago. A lthough M r. Brown claims to 14 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 repo rt or any federal probationary docume nt, or w ith th e Ba nk. A lthough Emm anuel Ba iley, 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 is sue; he has failed to carry his burden o f proof w ith 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 bu rden of p roof as to w hether he h ad comp leted paymen t of courtordered 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 Pennsylvan ia state law and, in addition to a forty-five day prison term, was sentenced to pay restitution. He also f ailed 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 c haracte r, 339 M d. at 535 , 663 A .2d at 13 16, and that, [g]iven the duties that attorneys are ordinarily required to perform, we think that the applican t's failure to carry ou t 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 la w. This co nduct refle cts adversely on the applicant's personal commitment to the proper administration of justice, as well as h is honesty and truthfulness. 15 Id. at 538, 663 A.2d at 13 17. In conc lusion, we found th at: [T]he applicant has failed to satisfy his burden that he presen tly possesses those qualities that comprise good moral character necessary for the practice of law. . . . We b elieve the record shows that the applicant does not ap preciate the fiduciary responsibility incumbent upon an attorney whe n entrusted with the monies of another person. He does not appreciate the analogy between the tax obligations and the client trust account respon sibilities. . . . We believe that the applicant's failure to honor his financial obligations evidences a disregard of a legal obligation and reflects advers ely on his f itness 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 absolu te cand or is a req uisite of admiss ion to th e Mar yland Ba r. See Application of Hyland, 339 Md. at 535-36, 663 A.2d at 1315-1 6; 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 nega tive to the qu estions on h is 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 disavow ed this allegation. Also, the alleged expu ngement does n ot explain Mr. Brown s lack of candor regarding his termination from employment with Citizen s Bank, for which he has o ffered no exp lanation . 16 Mr. Brown s inte grity is further impug ned by the fa ct that he also c oncealed his incarceration on the resu me that he attached to h is law scho ol application by affirmative ly stating that he was employed during the same period. Although during oral argume nt before this Court, Mr. Brown s attorney represented that Mr. Brown did not inten tionally misrepresent his dates of employme nt to conce al his incarce ration beca use in updating the resumes, the dates got confused and a clerical error occurred, it is difficult, if not impossible , to believe tha t anyone cou ld forget tha t he spent ten months in jail. This Court has denied ad mission of applicants w ho, like Mr. Brown , through the ir 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 a dult. K.B. was 28 and 29 years of age w hen the fra ud schem e was in e ffect. 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 activ ity occurred while K. B was in his senior year of law school and 17 after his comp letion of law school stud ies. He had the benef it of four years of exposure to the ethics and traditions of the profes sion. 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 wh en he chose to identify himself as a lawyer to Ms. Bruce at SunTrust Bank when a ttempting 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 be ing rehabilitated. It is understandable that M r. Brown wishes to put his conviction behind him and move on to become a M aryland lawyer; 9 Section 10 -601 (a) pro vides in per tinent part: Unauthorized practice of law (a) In genera l. 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 B ar. Md. Code (2000, 2004 Repl. Vol.), ยง 10-601 (a) of the Business Occupations and Professions Article. 18 however, misrep resenting his status only reflects poorly upon his pres ent moral character. Conclusion Therefore, although we give great weight to the Board s determination, albeit in a four-to-three decision, ou r independ ent review of the reco rd leads us to conclude that Mr. Brown has failed to meet his bu rden of p roving that h e is fully and com pletely 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. 19 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket No. 10 September Term, 2005 IN THE MATTER OF THE APPLICATION OF EMSEAN L. BROWN FOR ADMISSION TO THE BAR OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Bell, C.J. Filed: April 11, 2006 To qualify to take th e Maryland Bar Exa mination, an d thus, for ad mission to the Bar of Maryland, an applicant must have completed the pre-legal education necessary to meet the minimum requirements for admission to an American Bar Assoc iation ap proved law sch ool, Rule 3 of the Ma ryland Rules Governing Admission to the Bar, and have graduated, or be unqualifie dly eligible for graduation, from an ABA approved law scho ol. Rule 4 (a). 1 In addition, he or she must apply to take the examination, Rule 2 (a), (c)2 and Rule 6 (a), and be 1 Rule 4 (a) of the Rules Governing Admission to the Bar of M aryland provides: (1) In order to take the bar examination of this State a person either shall have graduated or shall be unqualifiedly eligible for graduation from a law school. (2) The law school shall be located in a state and shall be approved by the Ame rican B ar Asso ciation. 2 Rule 2, as pertinent, provides: (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. * * * * (c) Time for Filing. (1) Without Intent to Take Particular Examination. At any time after the completion of pre-legal studies, a person may file an application for the purpose of determining whether there are any existing impediments to the applicant's qualifications for admission. * * * * (2) With Intent to Take Particular Examination. An applicant who intends to take the examination in July shall file the application no later than the preceding January 16 or, upon payment of the required late fee, no later than the preceding May 20. An applicant who intends to take the examination in February shall file the application no later than the preceding September 15 or, upon payment of the required late fee, no later than the preceding December 20. ... Rule 6 (a) provides: of good moral character and fit[] for the practice of law. R ule 5 (a). 3 As to the proof of the latter, the burden is on the applican t. Rule 5 (a). Rule 5 prescribes the procedure by which the moral character and fitness of an applicant for admission to the Bar of Maryland is assessed and whether he or sh e will be ad mitted is determined. It is a three step p rocess: the C haracter C ommittee c onducts a n investigation, consisting of, inter alia, interviewing the applicant, verifying the accuracy of representations in the questionnaire, contacting references, evaluates the applicants character and fitness for the practice of law, and reports the results, with its recommendation, to the Board of Law Examiners. Rule 5(b) (1). 4 If its investigation or review reveals grounds for recommending (a) Filing. An applicant may file a petition to take a scheduled bar examination if the applicant (1) is eligible under Rule 4 to take the bar examination and (2) has applied for admission pursuant to Rule 2 and the application has not been withdrawn or rejected pursuant to Rule 5. The petition shall be under oath and shall be filed on the form prescribed by the Board. 3 Rule 5 governs Character review. Section (a) provides: (a) Burden of Proof. The applicant bears the burden of proving to the Character Committee, the Board, and the Court the applicant s good moral character and fitness for the practice of law. Fa ilure or refus al to answ er fully and candidly any question set forth in the application or any relevant question asked by a member of th e Charac ter Comm ittee, the Boa rd, or the Co urt is sufficient cause for a finding that the applicant has not met this burden. (e) Continuin g review. All applicants remain subject to further Committee review and rep ort until a dmitted to the B ar. 4 (b) Investigation and report of character committee. (1) On receipt of a character questionnaire forward ed by the Bo ard pursua nt to Rule 2 (d), the Chara cter Com mittee shall (A) through one of its members, personally interview the applicant, (B) verify the facts stated in the questionnaire, contact the applicant s references, and make any further investigation it finds necessary or desirable, (C) evaluate the applicants character and fitness for the practice of law, and (D) transmit to the Board a repo rt of its investigation and a 2 denial of the applicant s application, the Committee must conduct a hearing, at which the applicant may be represented by counsel, offer evidence and testify, and a transcript of which will accompany its report and recommendation to the Board. Ru le 5 (b) (2). 5 The Board reviews the Committee s report and recommendation and, if the Committee conducted a hearing, the transcript of th e hearing. It w ill conduct a hearing if it concludes that there are grounds for recommending denial of the application. The Board submits its report and recommendation to this Cou rt. Rule 5 (c). 6 Unless the applicant withdraws his or her application, this Court will hold a hearing on the records ma de before the Ch aracter recommendation as to the approval or denial of the application for admission. 5 (b) (2) If the Committee concludes that there may be grounds for recommending denial of the application, it shall notify the applicant and schedule a hea ring. The hearing shall be conducted on the record and the applicant shall have the right to testify, to present witnesses, and to be repres ented by cou nsel. A trans cript of the h earing shall be transmitted by the Com mittee to the Board along w ith the Com mittee s repo rt. The Com mittee s report shall set forth findings of fact on which the recommendation is based and a statement supporting the conclusion. The Committee shall mail a copy of its report to the applicant, and a copy of the h earing transcript shall be furnished to the applicant upon payment of reason able ch arges. 6 (c) Hearing by board. If the Board conc ludes after review of th e Committee s repo rt and the transcript that there may be grounds for recommending denial of the applicatio n, it shall promptly afford the applicant the opportun ity for a hearing on the record m ade before the Comm ittee. The B oard shall m ail a copy of its rep ort and recommendation to the applicant and the Committee. 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 ma tter. 3 Committee and the Board. R ule 5 (d) (3). 7 That hearing will either be on a show cause order requiring the applicant to show cause why the Board adverse recommendation should not be accepted, Rule 5 (d) (1); 8 see Application of Hyland, 339 Md. 521, 526, 663 A.2d 1309, 1311 (1995), or, when the B oard recomm ends admission, con trary to the Committee s recommendation that the application be denied, on exceptions filed by the Com mittee. Rule 5 (d) (2). 9 As required by Rule 5 (b), the Character Committee interviewed the applicant, investigated his characte r, including h is criminal record, and held a hearing at which it took testimony and evidence relating to his character and his post-conviction reh abilitation. It found that the applicant did not possess the quality of character necessary for admission to the Bar. Therefore, the Committee reported to the Board, that the applicant had not proven by clear and convincing evidence that he h ad bee n suff iciently reh abilitated . Acc ordingly, it recom mend ed to the Board that the a pplican t s applic ation fo r admis sion be denied . Subsequ ently the Board of L aw Exam iners, under Rule 5 (c ), has the respon sibility to 7 (3) Proceedings in the C ourt under this section shall be on the record s made before the Character Committee and the Board. If the Court denies the a pplication, the Board sh all retain th e record s. 8 (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 applica nt to sho w cau se wh y the app lication s hould n ot be de nied. 9 (2) If the Boa rd recomm ends app roval 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 Com mittee sh all mail c opies o f its exc eptions to the ap plicant a nd the B oard. 4 review the Character Committee s findings, make an independent determination as to the applicant s character and rehabilitation, and report, with recommendation to the Court of Appeals. Not only does the Bo ard review the Committee s report and recommendation, but it is also a first-level fact-finder. This is so because, pursuant to Rule 5 (c), the Board, under some circumstances, is required to ho ld an evidentiary hearing, at which evidence is accepted and testimony is taken, which entails obse rving witness dem eanor and mak ing credibility determinations, just like a trial cou rt.10 The Board, theref ore, often m akes, and, in fact, is required to make, factual findings, whether they are contradictory to those of the Character Com mittee, o r not. The Board held a hearing in this case, at which the applicant, and others, testified. After this hearing, the Board made its own factual findings and recommendations. The Board, unlike the Character Committee, determined that Brown had been rehabilitated and presently possessed good moral character and fitne ss to practice la w in this state. T hus, it recommended to the Cou rt of App eals that the ap plicant be admitted to the Bar. In so recommending, the Board must have found the applicant s explanations regarding his original crime, his court-ordered restitution, his failure to note his conviction on his law school application, his flawed resume, and his misrepresentation of himself as an attorney credible, and must have believed him to be a candid witness. 10 Otherwise, it would not have The determination of the facts is based in part upon the credibility of the witness. In this way, when his or her m otive or intention is at issue, an app licant s credib ility is inde libly b ound with the fac ts, an d mu st be reviewe d acc ordingly. 5 recom mend ed his a dmissio n. The applicant seeks admission to the bar after conviction of bank fraud, a crime implicating the applicant s honesty, an attribute particularly important in a lawyer. Fellner v. Bar Ass'n, 213 M d. 243, 131 A.2d 72 9 (1957); In re Meyerson, 190 Md. 671, 59 A.2d 489 (1948). Such a conviction is not absolutely disqualifying, however. There is no litmus test for moral character or fitness for the p ractice o f law. Allan S., 282 Md. at 690, 387 A. 2d at 275. This Court has, however, enunciated factors and considerations to be considered: Where, as here, an applicant for admis sion 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. 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 c omplete re habilitation. Th us, a prior co nviction m ust be taken into account in the overa ll measurem ent of cha racter and c onsidered in connec tion with other evidence of subsequent rehabilitation and present moral character. It is not without significance in this regard, as bearing upon moral fitness, that an applicant for admis sion to the ba r refuses to a dmit his crim inal condu ct. The ultimate test of present moral character, ap plicable to original admissions to the 6 Bar, is whether, viewing the applicant s character in the period subseq uent to his miscond uct, 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. That the absence of good mo ral character in the past is secondary to the existence of good moral character in the present is a cardinal principle in considering applications for origina l admiss ion to th e Bar. Allan S., 282 Md. at 690, 387 A.2d at 275. Althoug h we d o not apply the substantial ev idence test a pplicable to court review of decisions of administrative agencies and we are required to make our own independent evaluation of th e app lican t's pre sent moral ch arac ter based upo n the reco rds m ade b y the Character Committee and the Board, Application of Allan S., 282 Md. 683, 691, 387 A.2d 271, 276 (1978), quoting Rule 4 c, now Rule 5 (d) (3), the Board s recommendation, whether it is that an app licant do es not p ossess th e requis ite mora l charac ter fitnes s, id. at 690-91, 387 A. 2d at 276; Application of Hyland, 339 Md. at 536, 663 A.2d at 1316, or that the applicant has the requisite moral fitness, Applic ation of A. T., 286 Md. 5 07, 515, 408 A.2d 1023, 1028 (1979), is , nevertheless, entitled to great weight. Indeed, that this Court accepts the recommend ation of the B oard is th e rule an d the fa ilure to d o so, the excep tion. See In the Matter of the Application of William H. Hyland, 339 Md. 521, 536, 663 A.2d 1309, 1316 (1995); In the M atter of th e App lication o f Cha rles M ., 313 Md. 168, 178, 545 A.2d 7, 12 7 (1988); In re Application of Maria C., 294 M d. 538, 451 A. 2d 65 5 (1982); In re Application of G.L.S ., 292 Md. 37 8, 439 A.2d 11 07 (1982); In the M atter of th e App lication o f A.T ., 286 Md. 507, 515, 408 A.2d 1023, 1028 (1979). See also In re Sanderson, 387 Md. 352, 875 A.2d 702 (2005); In re Costanzo, 385 Md. 122, 867 A.2d 1039 (20 05); In re Lawson, 380 Md. 194, 844 A.2d 40 5 (2004); In re Application of Rosendale, 372 M d. 691, 816 A.2d 68 (2003); In re Application of Alonso, 372 M d. 136, 812 A.2d 29 1 (2002); In re Gardner, 368 Md. 505, 796 A.2d 90 (2002); In re Levenson, 356 M d. 1, 736 A .2d 1056 (1999); In re Alexander, 355 Md. 284, 734 A.2d 241 (1999). In fact, in the previous thirty years, we have refused to accept the Board s recommendation only nine times out of an approx imate six ty-five ca ses. See In re Application of Boccone, 373 M d. 358, 818 A.2d 10 77 (2003 ) (order only); In re Hersh, 354 Md. 329, 731 A.2d 43 8 (1999) (o rder only); Application of Vann, 349 Md. 101, 707 A.2d 87 (1998) (order only); Application of Dortch, 344 Md. 376, 687 A.2d 245 (1997) (order only); Application of J.L.L ., 304 Md. 394, 499 A.2d 935 (1985) (order only); Application of George B., 297 Md. 421, 466 A.2 d 1286 (1 983); Applic ation of K.B., 291 Md. 170, 434 A.2d 541 (1981); Applicatio n of Da vid H., 283 Md. 632, 392 A.2d 83 (1978 ); Applic ation of Allan S ., 282 Md. 683, 387 A.2d 271 (1978 ). Only in four of these cases did we issue an opinion rather than an orde r. See Applic ation of Georg e B., 297 Md. 421, 466 A.2d 1286 (1983); Application of K.B ., 291 Md. 170, 434 A.2d 541 (19 81); Applic ation of David H., 283 Md. 632, 392 A.2d 83 (1978); Applic ation of Allan S ., 282 M d. 683, 3 87 A.2 d 271 ( 1978) . In those instances in which we declined to follow the Board s recomm endation w ith 8 respect to the grant or denial of an applicant s application for admission, factual determinations were not dispositive or even in c onflict. In fact, the facts in those cases w ere clear and undisputed an d there were no c redibility issues to be resolved . In Allan S, for example, the parting of the ways between the Court and the Board had to do with the weighing process. T he fact of his criminal b ehavior having been estab lished, wh at it predicted with respect to his future actions and what to make of the subsequently established facts pertaining to the applicant s rehabilitation were the matters to be consid ered and weighed. The Board s recommendation focused backward on the criminal action and on its disbelief of the mo tive for it offered by the applicant. Rejec ting that approach, this Cou rt pointed ou t: We think the Board has a fforded controlli ng w eigh t to th at pa rt of the a pplicant 's testimony that involves the 1971 thef t and has g iven insuff icient consid eration to his present moral character and the evidence of his rehabilitation since the commission of that offense. It mu st be rememb ered that a pplicant 's first offense occurred in 1966, eleven years prior to the hearing before the Board; the 1971 offense occurred almost seven years prio r to that h earing. While there can be no doubt that each of these offenses, though p etty in nature, invo lved mora l turpitude, the a pplicant read ily 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 indefensib le. On the c ontrary, he did so repeatedly, both before the Chara cter Com mittee and th e Board, a nd we a re satisfied tha t he is deeply distresse d that he particip ated in s uch co nduct. 282 Md. at 691, 387 A. 2d at 276. In David H., the Court a gain weig hed the fa cts and circu mstances differently than did the Board . 283 Md. at 640, 392 A.2d at 87. Again, the facts of the criminal conduct w ere 9 not at issue, nor were there any factual determinations to be made that depended on the applicant s credibility. Whereas the Board, on this oc casion, focused on the applicant s future, as it projected it from the applicant s behavior subsequent to the criminal activity that was the subject of the proceedings, concluding that his actions since 1972 spe ak as eleg antly, or more so, than his oral testimony, and that the risk [of recurren ce] is slight. In short, we are satisfied that (the applicant) has been rehabilitated, id. at 638, 392 A.2d at 86, the Court focused on the past and, distinguishing Allan S., noted: Unlike the circumstances in Allan S., the present applicant's criminal conduct, by his own admission, persisted over an extended period of time. The thefts committed by the applicant were not, as in Allan S. isolated criminal transgressions; rather, they constituted a continuous course of criminal activity which the applicant did not see fit to term inate un til after h is gradu ation fr om co llege. Id. at 640 392 A. 2d at 87 . That and th e fact that the applicant's determination to conclude his criminal activity apparently did not flow from an inborn reso lve to chan ge his moral character; rather, the change was wrought as a result of the consequences to the applicant wh ich eman ated from his prosecution for those theft offenses for which he was apprehended by the police. Had he not been c aught, the applicant, according to his own account, may well have continu ed to ste al, id. at 640, 392 A. 2d at 87 -88, and tha t the rehab ilitative period was only approximately five years and the applicant was rather young, only 28, and could reapply, the Court concluded: at this time the applicant has not so convincingly rehabilitated himse lf that it is proper that he become a member of a profession whic h must stan d free from all suspicion. Id. at 641, 392 A. 2d at 88, quoting Allan S., 282 M d. at 690 , 387 A .2d at 27 5. The nature of the criminal activity engaged in by the applicant in K.B. was also n ot in 10 dispute; as characterized by the Court, [i]n the present matter, we do not deal with a sing le transgression. Four separate fraudulent applications for credit accounts are involved. 291 Md. at 177, 434 A.2d at 545. And those multiple transgressions involved some 100 transactions and extended over a period of about fiftee n month s. Id. at 177-78, 434 A. 2d at 545. The Board s recommendation was based on its conclusion that the applicant had a sole slip from grace and that he had made restitution for the fraudulent transactions. The Court rejected this charitable characterization of the applicant s criminal actions and determined that the Board s conclusion with respect to restitution did not follow from the record evidence: After K.B s arrest in November of 1975 he continued to work for the title company until his sentencing in July of 1976. There is no indication that the applicant undertook to make any restitution during that period. The applicant testified he made a payment of several hundred dollars to Amoco prior to leaving for prison. Following his confine men t, the applican t had been emp loyed continuousl y since February of 1977, but he did not resume making any restitution until November 1977. The plan of partial restitution, which was accepta ble to Amoco , was arranged by K .B. s attorney in obvious preparation f or the Novem ber 1977 hearing before the Board. We are far from convinced that the plan of partial restitution was prompted by a full and comp lete reha bilitation which occurr ed two years earlie r at the tim e of arre st. Id. at 179, 434 A.2d 545 . Further weighing the e vidence as to rehabilitation, the Co urt expressed concern with regard to what it discerned to be a continuous course of criminal activity ... perpetrated by a mature adult. K.B. was 28 and 29 years of age when the fraud scheme was in effect. Id. at 180, 434 A.2d at 546. We concluded that we had: the very distinct impression that th is applica nt's past criminal problem resulted from the perc eive d necess ity to main tain a desired level of soc ial prestige w hich, in this case, involved operating a car, and from a willingness to risk violating serious criminal laws in order to do so. E very experienced practitioner knows of cases where an attorney has yielded to the temp tation to borro w clients fu nds entruste d to him 11 because of the pres sure to ma intain a certain soc ial status wh ile waiting for some fees to come in. It is because of the great risk to the public in admitting to the Bar one who has exhibited this serious character flaw that we require the evidence of present moral fitness to unequivo cally demonstrate ... full and complete reha bilitation. Id. at 181, 434 A.2d at 546, quoting David H., 283 Md. at 641, 392 A.2d at 88. George B., 297 Md. 421, 466 A.2d 1286, is reflective of what was essentially a policy decision by the Court. There, the applican t was denied adm ission, although both the B oard and the Character Committee recommended to the contrary, because only six years had elapsed since his release from priso n for the felo ny offens e of a ttem pted armed bank robb ery, which, we noted, involved an exchange of gunfire between the applicant and a bank guard and, therefore, was a criminal transgression of a most serious nature, exceeding that involved in In Re Application of G.L.S., 292 Md. 378, 439 A.2d 1107 (1982), 297 Md. at 421, 466 A.2d at 12 86, and th [at] rehabili tative pe riod ... [was] of insufficient duration, considering the gravity of the offense committed, to permit establishment of the requisite moral character fitness prerequisite to admission to the Bar of Maryland. Id. at 422, 466 A.2d at1286. Those cases are n ot this one. W hile in those c ases, there w ere no critical c redibility issues that had to b e resolved c ontrary to their resolution by the Board, only questions concerning the appropriate balance to be struck in the interest of the integrity of the profession, here, the app licant s credib ility and the issue of proper balancing are inextricab ly bound up with factual issues viewed and resolved one way by the Committee and the majo rity, as per the majority opinion, and the opposite way by the Board. For example, central to the question of the applicant s rehabilitation was the question of whether he had made restitution 12 and whether it was com plete restitution. In turn, a related q uestion invo lved mon ey allegedly in a safe deposit box, and, in particular, its existence, its disposition, and whether, a s conten ded by th e applic ant, it wa s used f or the p ayment o f restitutio n. Where the facts are not in dispute, how one evaluates them does not implicate fact-finding and credibility determinations. Where, howev er, the facts are disputed so that credibility determinations are implicated, as for example, relating to motive, the factual findings by the trier of fact, in this instance the Board , may be c ritical. In order to evaluate the facts, it must be clear what the facts are and what the facts are will, in many instances, turn on whether the trier of fact credits or discredits a particular witness. There are factual d isputes in this case, largely those relating to motive and intent, but factual determinations, nevertheless. And those determinations depend on assessment of the witness s, in this case, the applicant s, credibility. With respect to the money in the safe deposit box, the Board found that many credible explanations were given as to the existence of the money in the safe deposit box. The money was never properly accounted for. Although it did not exp ressly state that it accepted, and believed, the applicant with respect to the issue, the opposite conclusion would be illogical and inconsistent, given the B oard s recommendation that the app licant be adm itted to the M aryland Bar. S imilarly with regard to the wheth er the applica nt comple ted restitution, i.e. paid it in full, rather than stating an unequivocal finding that the applicant had mad e full restitution, the Board comm ented, there is conflicting evidence on the issue. Its recommendation that the applicant be admitted 13 speaks volumes, however, and suffices to make clear that it resolved the conflict in the applica nt s fav or. A question was raised as to whether the applicant, while his character review was proceeding and he was att emptin g to arra nge res titution, m isrepresented himself as an attorney in telephone calls to a bank employee. The applicant did not dispute the representation, but maintained that his motive was simply to get the employee to return his call, which she had not done earlier. Again the Board did not specifically find that the applicant s motive was as he testified; however, ag ain, such a finding w as the only one consistent with the B oard s recommendation. If the motive was found to have been for some other p urpose, I sim ply cannot imagine the Board recommending the applicant s admission. The same observations can be made with respect to the applicant s explanation for the failure to disclose h is conviction on his law school ap plication and for the error s on his resume. More telling than the lack of explicitness of the Board s conclusions concerning these particular issues is the fact that the Board had determined that the applicant was morally fit for admission to the Bar. Explanations that were misleading, or intended to be, would not qualify the applicant for such a recommendation. The majority, in reviewing the Board s recommendation that the applicant be admitted, gives absolutely no deference or even any consideration to the Board s factual f indings regarding his intent and credibility. Instead, it questions the applicant s motives a t every turn and resolves issues as to which credibility is dispositive, without any regard to the Board s 14 determination. It refers to the applicant s alleged failure to complete restitution as a dereliction, In the Matter of the Application of Emsean LaVinci Brown for Admission to the Bar of Maryland, __ Md. __, __, __ A.2d __, __ (2006) [slip op. at 15], notwithstanding that the Board necessarily must have found that the applicant completed restitution. It views the applicant s explanation concerning the money contained in the safe deposit box as a complex labyrinth, and su ggests, a gain co ntrary to th e nece ssary find ing of th e Boa rd, that the applicant has actu ally not co mplete d restituti on at all. Id. at __, __ A.2d at __ [slip op. at 1516]. The Board s finding as reflected in its recommendation to the contrary notwithstanding, the majority characterizes as concealment the applicant s e xplanation for his failure to note either a gap o r a prison senten ce on h is resum e, id. at __, __ A.2d at __ (2006) [slip op. at 18], and, in effect makes a finding of its own, it is difficult, if not impossible, to believe that anyone could forget that he spent ten months in jail. Id. at __, __ A .2d __ [slip op. at 18 ]. Regarding the attorney misrepresentation issue, without any reference to what the Board must have found in that regard, the majority expresses disbelief that the applicant would have engaged in such behavior solely out of sheer frustrati on. Id. at __, __ A.2d at __ [slip op. at 19]. In short, the majority directly contradicts the record made by the Board. Rule 5 (d) (3), to be sure, require s that [ p]roce edings in this C ourt ... be on the records made before the Character Committee and the Board. I am also aware that in Allan S., this Court pointedly stated that our comment in Character Committee v. Mandras, 233 Md. 285, 288, 196 A.2d 630, 631 (1964), that the Board's findings of fact are presumptively correct 15 or at least entitled to weight w here based upon the te stimony of w itnesses wh ose credibility may be in issue, pre-dated the addition of Rule 5 (d) (3) to the Rules Governing the Admission to the Bar Of Maryland. The suggestion is, of course, that the fact-finding of the Board no long er is pres umptiv ely correc t. That the procee dings in this Court are to be on the records made before the Committee and the Board does not m ean, and c annot me an, that the C ourt may pick and choo se the factfindings to credit . It may, of course , determine w hether any fa ctual finding is clearly erroneous, but that does not equate to its being permitted to choose between conflicting findings.11 Otherwise, the Board s recommendations would be reduced to simple suggestions and its role would be essentially meaningless. Certainly this is not the intent of Rule 5 (d) (3) or of o ur jurisp rudenc e on the subjec t. I accept the Board s factual findings, and with those findings properly considered in the balance, I believe the Bo ard got it right. I would admit the applicant to the Bar of Maryland. 11 Application of Hyland , 339 Md. 521, 539, 663 A.2d 1309, 1317 (1995) provides an example of the proper use of the records developed before the Committee and the B oard, to uncover and focu s on any inco nsistencies, co ntradictions, a nd/ or evas iveness that the applicant's testimony before the Committee and the Board may contain. 16
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