*1 IN THE MATTER OF THE PETITION FOR REIN-
STATEMENT TO PRACTICE LAW OF L.
MAURICE BRAVERMAN BV) 7, September (Subtitle No. Docket [Misc. Term, 1973.] Decided March *2 argued cause J., before C. Murphy, Barnes, Levine JJ. Singley, Smith, Digges, Eldridge, King JohnF. for Maurice L. Braverman.
198 opinion J., delivered Court. C.
Murphy, Digges, page concurring opinion at J., filed a concurs and Smith, J., Smith, JJ., dissent and Barnes infra. J., concurs at dissenting opinion in which Barnes, filed a page 213infra. Maryland Bar admitted to the
Maurice L. Braverman was
thereafter,
7, 1941, and,
practiced law
on October
1, 1952,
City
years.
April
he was
for eleven
On
Baltimore
the District
States District Court for
convicted
the United
conspiracy
and advocate and to
to teach
government
force or
organize
the overthrow
Act,
in violation of
of the Smith
U.S.C.A.
violence
§
imprisonment
$1,000and
2385. He was fined
sentenced
affirmed.
years.
appeal, his conviction was
three
On
States,
1952)
(4th Cir.,
v. United
On October
we ordered
petition
that Braverman’s
practice
for reinstatement
law in this State be referred
evidentiary hearing
for an
three-judge panel comprised
to a
Judges
Grady
J. Harold
Eighth
and David Ross of the
Maryland
Judicial
Judge Mary
Circuit of
and
Arabian of the
Maryland.
Braverman,
District
See In re
Court of
269 Md.
661,
1. The nature and circumstances of Braverman’s
original misconduct. subsequent
2. His conduct and reformation. present
3. His character. present qualifications His competence and practice law. evidentiary The hearing was held three-judge before the panel on October 1973. Braverman testified on his own behalf, as did a citizens, number of including lawyers, judges, educators, and state gave officials. Each testimony clearly tending to demonstrate that Braverman had period rehabilitated himself in following his disbarment and proper person had become a to be admitted to the Bar of Maryland. contrary testimony No or evidence was adduced. Association, State Bar acting through its Governors, Board of and conducting after its own investigation, unequivocally recommended that Braverman be practice readmitted law in this State. The Bar City, Association of acting Baltimore through President, its panel told the three-judge that “there has not been a scintilla presented of evidence to the Executive Council of the Bar anything derogatory Association of about Mr. Braverman ... it had contradictory information that [and no] to what these persons individuals testifying and writing [those letters on Braverman’s state about his character behalf] his honesty and his trustworthiness since his release from prison during period subsequent to his release.”
The three-judge panel concluded that Braverman had “by established clear convincing proof his fitness to practice law” and recommended that he be reinstated as a member panel’s of the Bar. The recommendation was supported by these findings succinctly observations and set opinion: forth its
“NATURE AND CIRCUMSTANCES OF ORIGINAL
MISCONDUCT Appeals “The Court of in Braverman vs. Bar City, Association Baltimore 209 Md.
found the misconduct
for which the Peti-
tioner was disbarred consisted of his conviction
*5
conspiracy
2 of the Smith
to violate Section
involving
Act,
that
this
conviction was one
turpitude,
and
these
consti-
moral
that
facts
sufficient
cause of disbarment.
its
tuted
opinion
present proceedings
per
in
curiam
(1973)] the
Md.
“Proceeding from what this restricted panel give to the nature consideration can this original mis- and circumstances Petitioner’s position find taken conduct? We relevant that Peti- State Bar Association in his con- tioner’s misconduct w’hich resulted largely political nature viction light present viewed in the should be Although we do consider court realities. not rendered Petitioner’s con- decisions after undermining proof viction as the conclusive guilt, we do consider relevant of his change in attitude which is evidenced amply find demonstrated such decisions. We it developments necessitated the law have judicial prosecutorial change atti- Petitioner’s We also believe that since tude. change public acceptance
disbarment attitude, rights legal public attention to civil generally right and the of dissent particularly, public emphasis communist on detente with tempered foreign in our affairs all have nations public Pe- toward one the attitude position. weight titioner’s Great must also be given fact that Petitioner’s reinstate- *6 by Maryland ment is recommended the State Bar representing majority Association attor- neys practicing in this state.
“Considering today and circum- the nature misconduct, we con- stances the Petitioner’s prej- clude that his reinstatement would not be justice. to udicial the administration of SUBSEQUENT AND CONDUCT “PETITIONERS
REFORMATION produced by Petitioner con- “The evidence cerning satisfies conduct since disbarment his conspired only he not to teach has us that not gov- the violent overthrow and advocate subsequent disassociation ernment but that his Party and disenchantment from the Communist exists Soviet Union communism as it with activity. We find that his have characterized weight evidence has overcome Petitioner’s against him adjudicated his of the facts overthrow, i.e., conviction, advocacy of violent political nature activities of that his entirely of our within the mainstream been have addition, to the con- system. no evidence trary presented. was reformation, the Balti-
“As to Petitioner’s philosophical raises the Bar Association more proven ref- his question of how Petitioner recognize ex- he when refuses ormation any from which to reform. misconduct istence in his belief is adamant Since Petitioner expres- innocence, he in not is consistent his any he to hinder sing While seems repentance. might taking by not be cause what his contrition, way of confession easier position honesty must be intellectual recognized. Reform has been defined as: change better, bring from worse to from a good bad to a state. We believe Petitioner has demonstrated his reformation without an expression of Starting contrition from him. premise guilt conclusively that his
proven, we find his conduct since conviction complete to be a turnabout from that which resulted his conviction. We find his con- duct since totally conviction to be incon- sistent probability repetition previous of his misconduct. We believe this constitutes reformation as this term is used present proceedings.
“PETITIONER’S PRESENT CHARACTER *7 impressive “We find the unchallenged presented by evidence pres- Petitioner of his good clearly ent character establishes his eligibility for reinstatement on this score.
“PETITIONER’S PRESENT COMPETENCY present “Evaluation of qualifi- Petitioner’s competence practice cation and law the light long presents of his absence from the Bar guide an issue on which we find few lines. Pe- titioner’s admission pre- to the Bar in 1941 by sumes certification the State Board of Law possessed Examiners he requisite that then qualifications. presented No sug- evidence was gesting competence during period a lack of when he was a member of the Bar from 1941 until 1955. Neither the Rules nor the stat- prescribing ute the duties of the State Board provide of Law Examiners for reexamination of applicant an is diffi- reinstatement. It distinguish position cult Petitioner’s that attorney having of an who been once ad-
mitted to Bar devotes himself to other time, pursuits period such for an extended service, passage military and after practice. Pe- many years an undertakes active testimony outlined his activ- titioner in his correctional ity in of criminal certain areas a volunteer law and his intention become Legal Aid Bureau of Balti- intern with the more, We that Petitioner exhibits Inc. believe responsible by recog- a sound and attitude professional nizing refreshing the need for by by proposing he skills and a course may accomplish this. every attorney
“We mindful that is bound are by Maryland Rule 1230 to conform to the Code Responsibility of the American Professional provides part Bar Association. Canon EC6-1 * * * attorney accept employ- an should only in he intends ment matters which is or competent to become to handle. will abide persuaded Petitioner
“We are requirements of this Canon.” by the testimony Braverman offered support behalf on his numerous witnesses accompanying petition, and in his recitations made three-judge findings affidavit, plainly justified the order, high present character is of panel that Braverman’s years his disbarment during since that his conduct himself from exemplary, he disassociated been *8 prison in 1955 was released Party when he Communist and membership, his activities that his and never renewed adequately years have past 18 the pursuits over presently he reformation, that and demonstrated The more fundamental law. competent practice to degree of nature and however, the consideration, involves the circumstances and original misconduct Braverman’s Stump, Ky. 593, 114 In re 272 attending offense. See the approval Meyerson. (1938), with cited 1094 S.W.2d indicated, Braverman was As heretofore of convicted the conspiracy knowingly violate 2 of Smith Act to and § wilfully advocating duty teaching necessity and the and of violent overthrow the of the United States Government and organizing Party the Communist of the United to States overthrow, bring teach and advocate with such intent to speedily permit. about this result as as circumstances would affirming In conviction, Braverman’s the court Frankfeld States, supra, v. United found no the merit defendants’ judge jury contention that the trial submitted the case to the way permit jury in such as to the to convict of them conspiracy the membership on basis mere in the Party, knowledge any part Communist without on their Party purpose engaged. criminal which the was The held court that the evidence adduced trial at the Frankfeld was Party sufficient show that the Communist engaged conspiracy, object in a the of which was the violent government. overthrow of legally the It found that there was “ Braverman, sufficient evidence that had . . who . served as party, a member of the District Committee had been a meetings, candidate for chairman of one its had served as attorney, was a its member its ‘white collar club’ had .,” conducted in his joined classes for it home . . had knowledge conspiracy purposes. of its unlawful Frankfeld, Prior decision in court’s constitutionality upheld by of the Smith Act had been States, Supreme in Dennis v. United Court U. S. case, (1951). Supreme
S. Ct. 95 L.Ed. conspiracy organize Court concluded the defendants’ Party the Communist to teach and advocate the violent government in overthrow of the Act violation Smith present danger” presented a “clear an of such approved given court overthrow. The instructions judge jury that, requiring trial before convictions returned, be jury could had to find that each defendant specific government by had the intent to overthrow the force permit. violence or as soon as circumstances would advocacy since Act was aimed at Court stated that discussion, prohibit mere not it did not academic discussions *9 It was not clear Dennis, Marxism-Leninism. from of however, proscribed only advocacy that the Act of action, advocacy abstract doctrine of forcible and not of the overthrow. (and years Dennis after years in five
Six
after its decision
States,
Yates v. United
Court, in
Frankfeld),
Supreme
the
rejected
(1957),
298, 77
L.Ed.2d
354 U. S.
S. Ct.
complicity in a
theory
the defendants’
government’s
the violent overthrow of
conspiracy
teach and advocate
solely by their active
be shown
government
could
There,
Party’s
the Court
affairs.
identification with
finding
illegal
support a
of
did not
stated that the record
inadequacy
Party
apart
such
advocacy by
“
and that
requisite specific
perceive how the
...
it is difficult to
proved
deemed
accomplish such overthrow could be
intent to
membership
holding of office
by showing
a
mere
or the
Scales v. United
Party.”
“They be officers were shown to [the defendants] positions party occupying and teachers of the such respect jury well with to its activities that the could they necessarily knowledge conclude that had engaged it was purposes ... It is criminal join conspiracy persons who that with well settled purposes knowledge its unlawful make equally guilty and are parties thereto themselves originated at who it.” 198 F. 2d with those “well established” precisely application of the It was this finding complicity a “technical prerequisites to a conspiracy” Supreme Court refused to follow “quasi-political” organizations Scales respect required legal illegal aims. It that a defendant have both forcibly specific intent overthrow the have Dennis government. Although followed Frankfeld jury charging that must find that the defendants had intent, Yates such an it was not until the Court requisite specific enunciated its view that intent could *11 by membership holding not be shown “mere or the of office Party.” Despite in in the Communist the court’s statement against Braverman “was of that the case not one Frankfeld by membership” Party depending upon “guilt in mere the association,” legally it nevertheless found the evidence support upon showing a that sufficient to his conviction Party Braverman was an active member of the with advocacy. activities, knowledge illegal as of its Braverman’s by appear in to reflect summarized the court Frankfeld Yates activity “advocacy amounting to of action” under not Thus, apparent Scales.1 Braverman’s and it would seem that interpreted Yates. that It held Scales its earlier decision 1. In the court following category was not itself Yates of evidence made it clear that the advocacy: illegal teaching Marxism-Leninism and the of sufficient to show the connected resolutions dissemination outlines on books; general as text use of Marxist “classics” the official conventions; pronouncements Party past of the at and literature, including Party’s general the standard structure; Party’s history organizational the Marxism; the Party generally; secrecy meetings nature of the and the clandestine of evidencing sympathy with the by for and alliance statements USSR. officials patterns Tates at least two that illegal indicated The also stated Court 1) teaching advocacy: of forceful to show which were sufficient overthrow, type illegal by accompanied the of action directions as to reached; 2) teaching and the must be taken when the time for revolution of forceful course overthrow, by though legal accompanied contemporary a of specific purpose rendering of conduct the effective the later activity illegal which is advocated. Party up activities with the did Communist not mount requisite showing proof” specific “clear of intent organization “accomplish by the aims of the resort required Scales, by subsequent violence” decisions. See note, U. suggested by Maryland S. at 229. We also as Association, State Bar that the fact that all enforcement of Act Smith has ceased indicates that convictions obtained Act, including under Braverman’s, were related to “a particular time and condition” and as such his disbarment large was in product measure of those times and conditions and must be “in present viewed terms realities.” agree three-judge panel
We the conclusion of “developments change law have necessitated a judicial prosecutorial attitude” and that a consideration original of the nature and of Braverman’s circumstances misconduct reveals that his reinstatement would not be prejudicial justice. concluding, to the administration of In so considerably we are influenced the fact Maryland Association, acting capacity State Bar in its entity [legal] profession “the formal ‘the as a [state-wide] [having proper, pervading whole’ ... direct interest” a] proceedings, disbarment and reinstatement Boone, State Bar supra Association v. at cognizant reinstatement, fully recommended Braverman’s duty uphold highest professional its “to standards of protect public imposition conduct and Lombard, In the practitioner,” unfit Matter ... 242 Md. 208, 211 (1966). brief, 218 A. 2d In its State Bar its *12 Association states that recommendation is advanced complete understanding duly “with that Braverman was and fairly convicted of a Smith Act violation 1952 . . . that all by way appeal remedies were exhausted .. . that [and the] proof guilt is f conviction conclusive of his BV4 [Rule 1].” The Association states that while Braverman’s conviction adequate vel non ground disbarment, was an for his “the coalescence in the 1950’s of repudiation Braverman’s government’s communism and the of the abandonment Smith may Act indicate that the ‘time and conditions’ now ripe be for his reinstatement.” Association asserts that only unique “it is and unusual circumstances” which has prompted support it petition. Although reinstatement steadfastly maintaining always that force and violence have been personal creed, “abhorrent” to his Braverman acknowledges belonging he that was convicted of being Party prior part Communist to 1951 conspiracy membership. to such But he was ascribed urges “underlying that the characteristic” which resulted “being guilty turpitude his found been moral has cured.” (at 435) We in Boone p. noted footnote that consistent practice for standards reinstatement law set Meyerson, Legal Ethics, Drinker, pp. forth in 49-50, states always that possible lawyer while it was that a disbarred reinstated, “this, could be . . . should almost never occur except where the court concludes that the disbarment was lawyer . guilty erroneous . . who been found of an [f]or warranting act justly disbarment to be reinstated an creates impression very public on the which is bad for reputation bar, being the conclusion this friendship, pity, political because of .” or influence. . . Of course, pointed Meyerson, we out in of an disbarment attorney operate permanent disability. Indeed, does not as a Maryland (adopted Rule BV9 b Boone), after the decision in filing petitions reinstatement, which authorizes for requires showing that “facts set [be forth] Petitioner is rehabilitated and is otherwise entitled to the relief sought.” establishing That burden of petition heavy averments is a one is manifest — provisions of d 3 convincing proof” Rule BV9 “clear and must be shown support petition the Petitioner to his reinstatement. See also (1968 Repl. Vol.), Code Article has, Section We think Braverman in the eighteen years original disbarment, his since demonstrated practice fitness be reinstated to law clear convincing proof in accordance with the basic standards governing petitions Meyerson reinstatement set forth Boone; accordingly, sign directing we shall an order Maurice be L. Braverman readmitted as a member of the *13 court, subscribing, open standing upon good inBar Code, 10, Article required attorneys § oath ORDER Court of this designated in the Order Judges panel of reinstatement 1973, having recommended October
dated the Bar of member of as a L. Braverman Maurice said having held on hearing been Maryland, and a 1974, in March, day of is, 1st recommendation, it this date, two filed this opinion of the Court with the accordance dissenting, Judges Maryland, that
ORDERED, Appeals of Court of as a hereby, reinstated be, he is L. Braverman Maurice subscribing, in Maryland upon his the Bar of member of Code, required by attorneys court, the oath of open 10, sec. 10. Article Murphy Robert C.
/%/ Singley, Jr. J. Frederick /s/ Dudley /s/ J. Digges_ Irving
/s/ A. Levine_ John C.
/s/ Eldridge_ 1,1974.
Filed: March Norris, James H. Jr._
_/s/
Clerk, Appeals of Court of
Digges, J., concurring:
I concur in the order of the Court that “Maurice L. Braverman, be . . . reinstated as a member of the Bar of Maryland portions majority . . .and with those of the opinion has, required which Braverman conclude that Mr. by Maryland 3, factually Rule BV9 b and d in demonstrated proceedings these that he is now “rehabilitated and is sought.” However, otherwise entitled relief I cannot portion opinion questions subscribe to that of the integrity petitioner’s in of criminal conviction the United States District Court for the District of inor majority’s necessary attempt conclusion that it is away. explain 4, they I f 1 it As read Rules BV4 and BV9 d expressly prohibit a in such collateral attack these proceedings. pertinent part provide: These rules provisions
“The of . .. (Hearing) Rule BV4 . . . applicable shall be proceedings instituted pursuant [(Reinstatement)].” to this Rule BV9 d 4.
“In hearing charges pursuant a Rule, of to this a judgment by final judicial a tribunal in another proceeding convicting attorney an of a crime shall proof be guilt attorney conclusive of adjudication crime. A final judicial such ... a disciplinary tribunal in a proceeding that an attorney guilty has been of misconduct shall be proof considered as conclusive of such misconduct hearing charges pursuant to this Rule.” BV4f 1. governs
The rule which (Rule BV9) reinstatement directs only that we be convinced Mr. Braverman has demonstrated that, despite subsequent his conviction and disbarment, he is morally intellectually now qualified and to re-enter practice my law in view, this State. the establishment petitioner’s guilt in a trial which he and the two Bar agree fairly Associations conducted and which has appellate must, prior weathered attack in the absence of by appropriate post procedure nullification conviction or clemency, accepted fully binding executive be as valid and on this Court now.
Smith, J, dissenting:
My
any individual,
particularly
more
heart aches for
family,
long
completed
for his
who has
and arduous trek
goal
being
anciently
to his
a member of one of the three
recognized
professions,
law,
learned
this instance the
profession
then finds himself ousted from that
as a result of
Moreover,
absolutely
I
misconduct.
a doctrine
believe
forgiveness
brotherly
Thus,
easy thing
love.
to do
would be to vote
reinstatement of Mr. Braverman as a
member of
Bar of this
One
never
Court.
should
cast
press
upon
vote
this
the basis of what he thinks
Court
Nevertheless,
fully
I
reaction would be.1
am
conscious of the
*15
least,
segment,
metropolitian press
fact that one
at
fully
will
approve
However,
Mr. Braverman’s reinstatement.
by
my
a
me
in
vote
to reinstate would not be
accord with
understanding of what this and other courts have said as to
responsibilities
passing upon
application
our
in
an
for
reinstatement
to the bar.
Meyerson,
In re
671,
(1948),Judge
190 Md.
(later Judge) spokesman Chief Markell was the for the Early in opinion Court. he said:
“ question is, ‘The whether, of after conduct man, proper this it is that he should continue a profession member of a which should stand free * * * by way It is not suspicion. from all punishment; court, cases, but the in such exercise they their discretion whether a man whom have formerly proper person is a admitted to be attempt, given An influence our decision matter other than through brief regular, processes argument printed established of oral and roundly press, justifiably would be condemned so. Nevertheless, there has been more than one instance recent months of an suggesting position given editorial sure what our should be on a I matter. am stopped impropriety that if the writers had to think about the inherent editorials, appeared. of such Moreover, the editorials would not have I have suggestions Supreme never seen such editorial Court of the United Appeals. States or to a United States Court of
214 parte Ex Brownsall, on
continued the roll or not.’ 1778, 2 Cowp. (Lord Mansfield), quoted in Ex parte Wall, 265, 273, 569, 107 U. S. 2 S. L. Ct. 27 Ed. v. and in Rheb Bar Baltimore, Association of 186 Md. [200] at page A. 2d 289,291 [(1946)]. requirement applicant The that an for admission be ‘good character’, moral and the fact that statutory grounds only six of disbarment the first (tautological) grounds two are limited professional, distinguished personal offenses, illustrate the breadth of Lord Mansfield’s statement later applying authorities statutory provisions various which are elaborations of his Id. brief statement.” (Emphasis at 675-76. added.)
The quoted Lord approval Mansfield Rule by Judge Digges for this Court Balliet v. Balto. recent case of ’n, Co.Bar Ass 474, 478, 270 (1970). Md. A. 2d 465 In considering application reinstatement, an we must that, put Cannon, In re remember as it was 206 Wis. (1932): N. W. 441 “The relation of the peculiar bar is a courts relationship. and intimate bar is an attaché of quality justice the courts. The dispensed depends courts degree upon no small integrity of its bar. An may easily unfaithful bar bring reproach scandal and to the administration of justice bring the courts themselves into *16 Id. disrepute.” at 383. Meyerson, Judge Markell also said for the Court:
“ subsequent ‘A petition for admission to the bar a inquiry involves new whether, as to in the interval following the rendering judgment of removal, petitioner has proper a person become Keenan, Petitioner, to hold In re such office.’ 310 Mass. [166] at page 170, 37 N.E.2d at page inquiry an Such is directed to the facts of the particular case, but approached seems to be in a
215 different somewhat different attitude Stump, Ky. 593, 597, In re jurisdictions. many 1094, 1096,
S.W.2d the court classified rule’, establishing rules, a ‘lax a three decisions rule’, rule.’ It would ‘strict and a ‘reasonable middle purpose serve no useful to review the multitude cases, we jurisdictions. Some cases different think, do reflect a ‘lax rule’ which is not consistent principles, regarding and with the admission Mansfield, disbarment, shortly stated Lord applied in expanded in and statutes of this court and decisions of this court rules Supreme As is not Court. disbarment regard for the punishment, likewise we think due permit justice not administration does made mere disbarment and reinstatement to be system. adjuncts parole to reform schools us best considered The authorities that seem to view, with the take a different consistent recognized Maryland. principles “In, Kaufmann, 423, 427, Matter 245 N.Y. lawyer, it was held that after
N.E. felony automatically upon of a disbarred conviction States), case, conspiracy against (in the United can, upon pardoned, may, if he been he reinstatement, prove innocence application for Judge he was convicted. Chief the crime of which contrary hold cited to the said: ‘Precedents Cardozo not this, will than that reinstatement no more automatically pardon without more. follow George, People v. ex rel. Johnson 186 Ill. convincing proof of There must be
N.E. 804.
pardon will
restore to the
before
innocence
will
fellowship
bar. Even innocence of crime
up
to live
if there has been a failure
not suffice
morality
honor. Pardon does
the standards
open
inquiry
an
more than
the door to
no
however,
much,
it
otherwise be barred. That
would
430,157
page
page 733. It
245 N.Y. at
N.E. at
does.’
undisputed
nothing short of
apparently
*17
particular
innocence of the
crime involved
Attorney
justify
case would
reinstatement.
General
Justice)
(later
Stone’s recommendation of
Chief
pardon
to the President was based on belief
Judge
case
also
innocence.
the same
Cardozo
attorney seeking
said: ‘No doubt the
reinstatement
satisfying
has the burden of
the court of his fitness
fellowship.
to be restored to so honorable a
For the
repute
profession
welfare and
the order of
presumption
disbarment stands until
of its
persuasively
correctness has been
rebutted.’ 245
428, 429,
pages
page
N.Y. at
But the disposed Court would not be to exercise power, that no sympathetic matter how might be, members of perhaps, the Court unless on being committed, convinced an that error was or an injustice done, in rendering the decree of showing disbarment. There is no such in this case.’ Wolff, In re 257, 583, Id. La. 136 So. 584.” at 677-79.
This
language
Meyerson
quoted by
exact
from
Chief
Judge
Bar
St.
Ass ’nv.
Hammond for the Court
Boone,
420, 432-35,
(1969).
255 Md.
In Hammond also said: Association, Rheb v. Bar 200, said in
“We 186 Md. In 205, Lombard, the Matter 242 Md. analysis duty upon that the last rests ‘[i]n profession whole, and the aas uphold the courts highest professional standards of conduct and protect public imposition by from the unfit or added, (Emphasis Id. practitioner.’ unscrupulous f at accepted authority legal on the matter of ethics is H. Legal,
Drinker, Ethics See (1953). Hebert, & A. Tate W. Judges: Bibliography Treatises A Selected (1971). Judge Boone page quoted Hammond in a footnote at 435 of following language Drinker: is, course, always
“While possible it that a lawyer may this, reinstated, disbarred be it believed, except should never almost occur where the court concludes the disbarment was lawyer guilty erroneous. a For who has been found warranting of an act disbarment to be reinstated justly impression public creates an on the which is very bar, reputation bad for being friendship, conclusion this is because of pity, political influence; or is not Matter
infrequently Shepard case. Cal. [35 App. (1917)], the court he said: ‘When disbarred, charity once mistaken been should not ” position.’ him restore to his repeatedly “While the have courts said it require stronger proof good should much lawyer character to restore a disbarred than that admission, required nevertheless, lawyers on his continually being reinstated, disbarment, are after any for conduct which character committee would preclude unquestionably original have held to their kind, admission. this manifestly Instances of often unjustified, injurious reputation are most eyes public.” the bar Id. at 49-50. *19 Morrison,
In In re Petition
45 S. D.
“[I]f upon by him satisfactory evidence, to establish that judgment either the court erred in its disbarment, undergone or that has he such moral change person enjoy as to render him a fit to trust and confidence once forfeited. A court should it disbar, but should be even slower to be slow to reinstate; it should endeavor to make certain it again put unworthy not does into hands of an petitioner opportunity almost unlimited to wrongs society upon possessed by inflict lawyer.” added.) Id. practicing (Emphasis at many That was court faced endorsements of reinstatement, as subject: are we. It said on that twenty petitioner
“Some or more think — punishment apparently suffered sufficient forgetting that imposed disbarment is not as a punishment, necessary protection but as a means of society, that, long may to society as need protection, deny right this court has no to such may suffer merely an individual protection because injure power being to hold the from not allowed punishment he has urge society. Many wrongdoing, him from future will deter suffered consequences as to the forgetting that it is not fear qualifies for admission wrongdoing that one and intent to bar, an innate desire but rather (Emphasis Id. at 129-30. right course.” follow the original.) supporters and some of his that Braverman
It is obvious purpose of public comprehend the true in the do not story in a refers to a a footnote his brief disbarment since McCarthy “A Era daily in he is called metropolitan already been Being As has Casualty Is Punished.” Who Still punishment. purposes of pointed out, is not for disbarment shown his protect public one who has It unworthy and confidence he is of the trust actions that Moreover, bar. reposed in him he was admitted to the when Act, which the Smith important to remember that it is violated, passed to have Braverman was found Roosevelt, a of Franklin Delano during second term Joseph years appearance of Senator prior number McCarthy political scene. upon the national of a reinstatement prerequisites for
One of the usual
wrongdoing. For
lawyer
is remorse for
disbarred
Stump,
Ky. 593,
In re
“[W]hile willing not regret repentance, we are or must show himself or be say man must humble to that a may a criminal guilt of what be required to confess a sense at least But he should offense. of manifest Scriptures, language wrongdoing, in the and of ’ ‘bring forth, therefore, repentance. meet fruits for have conduct he must subsequent and By his life reformation; for, his men do not demonstrated thistles,’ thorns, figs and grapes or of ‘gather of prophet suggested wrongdoing to persistency unchangeable leopard’s spots. of the colors The question always ultimate and decisive whether applicant good is now of moral character and is proper person a fit and to be reintrusted with the privileges attorney confidences and of an at law. question significance This has a broader than its purely personal aspect. From time immemorial lawyers peculiar regarded have in a sense been lawyer’s obligation a officers of the court. It is participate upholding integrity, dignity, purity of courts. He owes definite responsibility public proper in the justice. administration It is of utmost importance integrity legal that the honor and profession preserved should be and that the lives of reproach. malpractice its members be without only upon brethren, of one reflects dishonor not his upon themselves, but the courts among and creates people a distrust of the courts and the bar. Therefore, proven one to have violated those good professional conditions of behavior and integrity granting privilege annexed to the practicing law, applying restoration, has the by persuasive overcoming burden of evidence the judgment former qualification. adverse on his short, attorney prove the disbarred can if after expiration length a reasonable time that he appreciates significance derelictions; his probity a consistent life of integrity, lived possesses good shows that he character necessary guarantee uprightness and honor in professional dealings discharge and the faithful lawyer, worthy of his duties as a and therefore is restored, be the court will so order. Thornton on Attorneys Law, 902; at sec. Walker v. 86; Commonwealth, Ky. 86, 8 Bush In re (2d) Snodgrass, 756; 166 Okl. 26 P. In re Bruener, (2d) 437; 178 Wash. 34 P. Burns v. State, App., 172; (2d) Egan, Tex. Civ. 76 S.W. In re 1; 52 S. D. In O’Connell, 218 N.W. re 199 Cal.
221 538, 390, 1232;Kepler Bar, 250 P. 48 A.L.R. v. State 52, 13 509; 216 (2d) Clark, App. Cal. P. In re 128 Div.
348, 777; 112 In Hawkins, Boyce, Del., N.Y.S. re 4 200, 243; Thatcher, 87 A. In re 83 Ohio St. 810; 1912A, parte
N.E.
Ann. Cas.
Ex
Marshall,
Miss.
Id.
So.
at 598-99.
[165
791].”
added.)
(Emphasis
point
This
precise
it,
Court has not had the
before
insofar
find,
I
probably
prior
as can
adoption
because
in
application
current rules
1970 an
for reinstatement was
prius
nisi
addressed to the
court which had disbarred the
petitioner. This
only
Court was involved
if there were an
appeal by
applicant.
appeal
No
existed from an order
directing
Boone, supra.
significant,
reinstatement.
I find it
however,
’n,
in
Fellner v. Bar Ass
the disbarment case of
243, 247,
(1957),
Md.
Do we find panel evidence of remorse judges here? The which heard this case said: reformation, Bar the Baltimore
“As to Petitioner’s philosophical question of raises the Association when he proven his reformation how Petitioner any recognize refuses existence which reform. Since Petitioner misconduct from innocence, he is is adamant in his belief his any repentance.” expressing consistent not honesty of recognize intellectual panel “the The went on to repentance. no Nevertheless, there is position.” Maryland State mildly, shocked, put I am it expressed position, as take the Bar Association would case, Petitioner’s “that opinion panel which heard this largely in his conviction which resulted misconduct light be viewed political in nature and should allusion present present realities to realities.” expressed was made were the brief as amicus curiae filed *22 by with us fall association last when the matter was first before Itus. said: years
“Over increasingly the it has become apparent advocacy teaching that the for which Braverman was during convicted and disbarred the which, 1950’s was of a today, kind if reconsidered expanded would fall within protection of First Amendment.”
It was contended to
again
us then and
when this matter was
argued
report
after
panel
judges
of trial
that the
Supreme
prosecutions
Court’ has outlawed
such as
Ohio,
Brandenburg
Braverman’s
citations to
v.
395 U.
444,
1827,
(1969),
S.
89 S.
23
430
Ct.
L.Ed.2d
and Yates v.
States,
298,
1064,
354
United
U. S.
77
1
S. Ct.
L.Ed.2d 1356
(1957).
argument
At the last oral
Braverman added to his
recently
list the
Party
decided case of Communist
Indiana
of
Whitcomb,
v.
414
U. S.
94 S. Ct.
(1974).
supports
L.Ed.2d 635
any
Not
one
these cases
súch
proposition.
right
Whitcomb involved the
Communist
Party
appear
filing
on the Indiana ballot without first
affidavits of its officers that
it did not advocate the
local,
government
overthrow of
or
state
national
force or
There,
violence.
Mr. Justice Brennan said for the Court:
recently
“We
most
summarized
consti-
principles that have
tutional
evolved
this
Brandenburg
Ohio,
v.
(1969),
area in
U.S.
expressly
holding
We
overruled the earlier
Whitney
California,
(1927),
United
297-298
teaching
“the mere abstract
... of the moral
propriety
necessity
or even
a
moral
resort
violence,
to force and
is not
the same as
preparing
group
for violent
action
steeling it to
...
such action.”
A
which
statute
impermissibly
fails to draw this distinction
upon
guaranteed
intrudes
the freedoms
sweeps
First and Fourteenth Amendments. It
speech
within its condemnation
our
Constitution
immunized
gov
*23
ernmental
control.
Yates
Cf.
v. United
States,
Id.,
(1957);
Brandenburg prosecution involved under an Ohio criminal syndicalism because, statute. The were convictions reversed put it: the Court
“Neither the indictment nor judge’s the trial jury any way instructions to the refined the statute’s bald definition of the crime in terms of advocacy mere distinguished not from incitement to imminent lawless action.” Id. at 448-49. Brandenburg portion quoted footnote in that said:
Whitcomb theory Act, “2. It was on the the Smith 54 670, Stat. 18 embodied U.S.C. such a § principle applied only and that it had been conformity with it that this Court sustained the States, constitutionality. Act’s Dennis v. 341 United (1951).(That U.S. 494 this was the basis for Dennis States, emphasized was in Yates v. United U.S. (1957), 320-324 in which the Court overturned advocacy
convictions for of the forcible overthrow Act, of the Government under the Smith because judge’s the trial instructions had allowed conviction advocacy, mere tendency unrelated to its produce (Emphasis action.” Id. at 447-48. forcible added.) was a Smith Act Mr. Yates case. Justice Harlan there said Court, reviewing for the after the trial court’s instructions yet claim other instructions should have been given: advocacy
“The distinction between of abstract advocacy doctrine promoting directed at consistently unlawful action is one that has been recognized opinions Court, in the beginning of this Washington, with Fox v. 236 U.S. and Schenck States, v. United U.S. 47. This distinction heavily York, underscored in Gitlow v. New 652, in nearly U.S. the statute involved was us, identical one now before and where the Court, despite the narrow view there taken of the Amendment, First said: penalize
‘The statute does not the utterance or publication of abstract “doctrine” or academic having quality discussion no of incitement any concrete action. ... It not is the abstract overthrowing organized “doctrine” of gov- ernment unlawful means which statute, advocacy denounced but the *24 accomplishment action for the that purpose. . . . This ... is the [Manifesto] [in] language of direct incitement. . . . That the jury were finding warranted in that the merely Manifesto advocated not the abstract doctrine of overthrowing organized gov- by ernment force, violence and unlawful means, end, but action to that is clear. . . . That inciting utterances to the overthrow government organized means, unlawful present danger a sufficient of substantive evil bring punishment range to their within the óf Id., discretion, at 664-669.” clear.’ is legislative at 318-19. Id. on this Court’s reliance
“The Government’s jury misplaced. The decision Dennis given here were were refused instructions this Court there, referred to and were jury find the facts essential requiring ‘the U.S., at 512 crime.’ 341 the substantive establish added). point that at one (emphasis It is true opinion stated that it is Justice’s late Chief discussion,’ advocacy, not ‘is directed at Act Smith id., reference was it is clear that the at but very ideas, next action, advocacy not jury was opinion emphasizes that the sentence the be no that there could properly instructed ‘advocacy in realm of ideas.’ conviction for likewise concurring opinions that case two we are with which emphasize the distinction Id., 545, 546, 547, 571, 534, 536, at concerned. at 320.
572.”Id. Yates, give had failed to Dennis trial court the Dennis instructions In Braverman’s case
instructions. is a footnote to Yates given. In Braverman’s brief there were Supreme “the Court in that case comment that with the of the Communist acquittal of several officers ordered engaged in them has or Party ground that ‘none of on the appears to have been any what but associated been We are not advised 354 at 330.” wholly lawful activities.’ said: also the fact that Court the brief of concluded we have basis “On this Kusnitz, Connelly, petitioners against evidence clearly Steinberg is so Richmond, Spector, and ordered, be acquittal should their insufficient Dobbs, Fox, Carlson, petitioners as to but (Mrs. Lima, Lambert, Connelly), Healey Yates, be we would not Schneiderman, Stack, *25 justified way closing the to their We retrial. proceed the reasons for these conclusions.” Id. at 328-29.
The comment is also made brief Braverman’s McCarthyism era of has subsided and the threat “[t]he political longer readily unorthodox no beliefs is so punished.” demonstrate, IAs shall Braverman was not punished political for “unorthodox beliefs.” As the record plain, makes just activities went much than further political unorthodox beliefs.
Braverman wrastried in United the States District Court Philip for the District with Frankfeld et al. His States, appeal case on was known as v. United Frankfeld (4th 1952). There, F.2d Judge Cir. Chief Parker said for court, the Maryland’s distinguished which included Morris Soper: A. here, just
“The defendants contend the as did case, defendants the Dennis that the use force part program is no party violence presented effect; evidence to the but presented question thus jury wras one for the finding decide and its in accordance the government amply contention of the supported was by testimony of witnesses as well documentary evidence adduced.” Id. at 686. jury presided which convicted Braverman was over Chesnut, truly
the late W.' distinguished jurist. Calvin Accordingly, charged it was he jury. who I find it of application context Judge interest of this that Chief Parker said:
“Defendants contend that court submitted way permit in such jury case as to to convict conspiracy them of on basis of mere membership in party, the Communist without knowledge part any on their purpose criminal party engaged. which the There is no basis any contrary jury such contention. On the were *26 expressly instructed that no the one of defendants jury could be convicted unless the find should guilty knowledge part. and intent on his Thus the judge, in beginning charge, defining the of his after conspiracy charged the of crime the indictment, jury explicitly: told the
*’* * you affirmatively unless do find beyond respect a reasonable doubt with to each separately respectively the defendants they conspire among considered that did either themselves or with others named in the defendants, indictment are who not to commit acts, prohibited you one or more should guilty find a verdict not such defendant conspire. did not any who so And the case of charge I you you one the defendants that guilty should find that defendant not unless you conspiring find in so with another or wilfully, others he knowingly did so ” with the intent mentioned.’ judge “The made it clear that the Communist Party could teach the abstract doctrine of overthrowing government long the so itas force effect, saying: did not advocate action to that you
‘And in this I connection further instruct against Act is Smith not aimed teaching of the mere abstract doctrine of overthrowing government or the mere teaching the historical doctrine of Marxism Party and its or Leninism. Communist long members are entitled do this so as their teaching go advocating does the extent of not accomplishment action for the of a violent by language reasonably revolution ordinarily persons calculated to incite to such action.’ question respect main
“With to the second defined, as theretofore connection case conspiracy with the if one had been defendants charged jury proven, he as follows: you passing question, ‘In second main on this respect the evidence with must consider separately. The defendants several entitled to a Government is not obtain against any one of six conviction beyond defendants unless it establishes doubt, first, that such defendant reasonable conspiracy by becoming joined the an active Party knowing its Communist member *27 objectives by aims and as contended the Government, personally intending in and objectives an accordance with said and as member or officer or official of said active knowingly wilfully Party advance or to duty principles teaching advocate its of the or necessity overthrowing the of Government as speedily permit, as circumstances would or with such intent to circulate and distribute teaches, organize which so or to or literature help organize groups or assemblies of persons encourage who so teach or advocate or overthrow or destruction of the government. any You should not convict .you they defendants unless find that had this knowing specific intent and were wilful and they doing. what were must Government prove in that with also this connection such knowledge, purpose, and intent a defendant and was continued be a became or member period conspiracy a within the of three of such finding years before indictment.’ stating government’s “After contentions with defendant, respect to each he said: defendant, respect ‘With to each proving Government has the burden of that he joined participated or she in such conspiracy knowingly wilfully and that specific such defendant entertained duty intention to teach or advocate the or necessity overthrowing destroying or government of the United States force and violence and that he or she intended to teach or organize groups advocate such doctrine or to purpose specific for such with the intent or bringing purpose about such overthrow as speedily permit. The as circumstances would beyond Government must establish this reasonable doubt.’ instructions, light “In the these there is no
ground strenuously whatever contention jury made that the were allowed to defendants party membership convict on the basis mere or guilt by (Emphasis at 687-88. association.” Id. added.) (D. Braverman, Supp. 1957), 148 F. 56 Md. In re court was concerned with a disbarment action that court. According Judge version, Thomsen’s Braverman Chief contending was then his trial and revealed “that conviction Judge no misconduct that his disbarment . . . .” warranted] Isserman, quoted Thomsen 345 U. S. In re S. Ct.
676, (1953), grounds, L. 97 Ed. 1013 reversed on other 348 U. (1954). 1, 6, There, L. Ed. 3
S. 75 S. Ct. 99 Chief Justice Vinson said: respondent already
“It is said that been punished contempt enough for his and that excessive, punishment. disbar him is vindictive purpose Such an attitude misconceives the right in disbarment. There is no vested an right in practice individual law. there is a Rather protect itself, society, the Court to and hence as an justice. instrument of That to the individual disbarred there is a loss of status is incidental to purpose and cannot deter the Court of the Court duty from its rolls one who has its to strike in with the standard
engaged conduct inconsistent at 289. expected of officers of the Court.” Id. crime, in of his Braverman’s the sense
The nature of bar, escape responsibility has seemed to as a member of escape Judges some, including majority here. It did not Watkins, heard that matter the United Thomsen and who Court.'Judge there said for the District Thomsen States court: agree respondent’s
“We
contention
cannot
revealed no misconduct
that his trial
conviction
only
his disbarment.
that warrants
Not
felony,
which he was convicted a
it
crime of
turpitude;
moral
and it
involved a
involved
undertaking
y)hich
violation
the oath
of the.first
practice
respondent took when he was admitted to
attorney
support
‘I
an
this court: will
at
Constitution
the United States.'"
Id.
added.)
(Emphasis
unpardoned
We have here an
felon who shows not the
jury
slightest
peers
his acts. A
of his
found that
remorse for
presumed
he had
Act. Juries are
violated
Smith
follow
given
Manufacturing
the instructions
them. Shotwell
Co. v.
States,
341, 367,
448,
“I will bear true to the United support, protect and ... I will and defend the Constitution, government laws and thereof as the supreme law of the land part
An judicial procedure. oath is a fundamental of our *29 testify falsely perjury. To under oath To induce one to testify falsely perjury. under oath is subornation of Either very judicial crime strikes at fundamentals of our system. strongly suspect my I majority brethren of the eligible unpardoned deem would not for reinstatement an individual, previously perjury convicted of or subornation of perjury, slightest who showed not the remorse for his They justified saying, unlawful acts. be would as it was Cannon, put slightly in a different context State v. 401, 404, (1929),
Wis. right lawyer N. W. 385 of a “[T]he place by to maintain his at the bar must be determined his justice.” conduct as a only minister of Braverman not was involving turpitude, convicted of a crime moral he was contrary shown to have acted to the oath he took this Court and the similar oath he took in the United States Maryland. District Court for the District of I see no reinstating difference between him reinstating unpardoned perjurer convicted and who shows not slightest perpetrated. remorse for the crime he When one perjury commits the crime of one demonstrates that his oath nothing to tell the truth means I pointed to him. As have out, guilty to find Braverman aof violation of the Smith Act, jury obliged was to conclude that Braverman committed acts loyalty which violated his oaths of to the States, United oaths taken when he was admitted to the bars of this Court and of the United States District Court for the Maryland. Therefore, by District of betrayed acts he resposed trust and confidence in him when he originally practice admitted to opinion this I am Court. that a person who demonstrates his conduct that an oath means nothing him, and who slightest repentance shows not the misbehavior, for his qualified is not to be an officer of this Court, as upon Braverman will be his reinstatement bar today. Therefore, Court’s action I strongly am opinion petition that Braverman’s rejected. should be Judge Barnes reviewed opinion this me, authorized prior to the effective resignation date of his Court, from this say that he expressed concurs opinion. views in this