Attorney Grievance Commission v. Gilbert

MURPHY, Chief Judge. This case involves a petition for disciplinary action filed by the Attorney Grievance Commission against James Gilbert, a member of the Maryland Bar since 1983. The Commission seeks Gilbert’s disbarment for a claimed violation of DR 1-101(A) and DR 1-102(A)(1) and (4) due to his alleged intentional failure to disclose a material fact in his 1980 application for registration as a candidate for admission to the Maryland Bar. 1 Specifically, the nondisclosure was of a civil suit filed by Gilbert in which he unsuccessfully sought, as beneficiary, to recover the proceeds of several ⁴⁸⁴ life insurance policies procured by him on his deceased wife’s life three months prior to her murder. I. Prior to his admission to the Maryland Bar, Gilbert was involved in a series of criminal' incidents, all of which occurred over a six-month period in 1967.

As a result, he was charged with conspiracy to commit forgery, forgery and uttering, murder and accessory to commit murder, homicide and assault. He pled nolo contendere to the charge of conspiracy to commit forgery for which in 1968 he received a suspended sentence. He was found guilty of six counts of forgery and uttering arising out of the use of a misappropriated credit card and received a sentence of twenty months to five years incarceration. Shortly after his enrollment in law school, he was arrested on murder and aggravated assault charges arising out of a Halloween night stabbing of a gas station attendant by one of his companions.

Gilbert was found not guilty of these offenses; subsequently, he pled nolo contendere to simple assault for which he received a suspended sentence. During this same period in 1967, Gilbert was arrested for murder and conspiracy to commit murder in connection with the murder of his wife on June 4, 1967. He was indicted for these offenses, along with his sister, on March 13, 1969. The charges against Gilbert were nol prossed on June 24, 1974, following his sister’s acquittal on March 13, 1972.

Gilbert was initially incarcerated without bond until December 1967 and was later imprisoned for twenty-one months from November 1970 to August 1972 upon his convictions for forgery and uttering. As a result, he was unable to continue law school. He resumed his law school studies after his release from incarceration and graduated in 1980. He completed his application for admission to the Bar of Maryland on May 20, 1980.

On May 29, 1980, Gilbert filed a petition for the expungement of all records associated with the nol prossed indictment for his wife’s murder. The petition was granted on June 23, 1980. Gil ⁴⁸⁵ bert successfully passed the July 1980 Bar Examination. Thereafter, the character investigation process was initiated to determine Gilbert’s present moral character fitness for admission to the Maryland Bar.

The Character Committee of the Third Judicial Circuit held a hearing on October 21, 1980 to determine whether Gilbert currently possessed the requisite moral character to justify his admission to the Bar. See Rule 4 of the Rules Governing Admission to the Bar. The Committee unanimously recommended to the State Board of Law Examiners that Gilbert be denied admission. As authorized by Rule 4 c, the Board conducted its own evidentiary hearing on November 2, 1981; by a 3-2 vote, it concluded that Gilbert had demonstrated his present moral character fitness and recommended that he be admitted.

We considered the matter at a hearing “upon the records made by the Character Committee and the Board.” Rule 4c. A divided Court ordered Gilbert’s admission after concluding that the evidence was clear and convincing that he was completely rehabilitated and presently possessed good moral character. See In re Application of James G., 296 Md. 310 , 462 A.2d 1198 (1983). In so concluding, we were conscious of Gilbert’s difficult life experiences, including the continuous conflict between his parents that culminated in their separation; the birth of a Downs Syndrone child during his first marriage in 1964; and the fact that his first wife had been the victim of a murder in 1967.

In arriving at our evaluation of Gilbert’s present moral character, we took into consideration the nature of the offenses for which he was convicted; that all his criminal offenses occurred within a six-month period; that the murder charge involving his wife’s death was nol prossed; that sixteen years had since passed; that Gilbert had been admitted to the Bar of the District of Columbia in 1981 and had performed as a lawyer without any negative incidents; and that although Gilbert’s crimes were serious and involved moral turpitude, he candidly and “readily admitted his responsibility for and his participation in the crimes in which he was involved and ⁴⁸⁶ his remorse is fully evident and genuine.” 296 Md. at 316 , 462 A.2d 1198 . Shortly after his admission to the Maryland Bar, Gilbert’s involvement as a plaintiff in a civil suit, not disclosed on his admission application, came to the attention of the Attorney Grievance Commission. That suit was filed by Gilbert on June 4, 1970 in the Circuit Court for Baltimore County to recover $110,000, representing the proceeds from two insurance policies which Gilbert had obtained insuring his wife’s life. The insurer had declined to pay the proceeds to Gilbert as beneficiary, contending that he was not entitled to them because he had intentionally caused the death of his wife.

At the conclusion of an evidentiary non-jury trial on November 10, 1970, Judge Kenneth C. Proctor denied Gilbert’s claim to the proceeds, finding that “the evidence is overwhelming that [Gilbert] intentionally caused the death of his wife in order to reap the harvest, namely, the proceeds of these two life insurance policies, so that he could live, according to his light, happily ever after.” In so concluding, Judge Proctor related in an oral opinion that the evidence showed that three months before his wife’s murder, Gilbert obtained the two policies insuring his wife’s life. The murder took place at a tourist home operated by Gilbert and his wife. According to Gilbert’s sister, Janet, the door buzzer sounded that night and she answered. At the door was a man with a knife.

He followed Janet upstairs to where Gilbert’s wife was watching television. Gilbert was not then present. The intruder forced Gilbert’s wife into another room, demanded money from her and then, almost immediately, shot her with a gun which Gilbert and his wife had purchased the day prior to the crime. According to Janet, she picked up the gun and shot at the assailant, who escaped.

Judge Proctor deemed it suspicious that Janet’s fingerprints were not found on the murder gun. He expressed concern that there was no explanation as to how the murderer obtained possession of the gun; that while the mur ⁴⁸⁷ derer demanded money, he immediately shot the victim without any further attempt to complete a robbery; that Janet waited a substantial time before calling the police; and that Gilbert inexplicably called home at 2:00 A.M.— about an hour after the police arrived on the scene—from his employer’s home where he had spent the evening. Judge Proctor noted that there was testimony from Gilbert’s employer that Gilbert told him he paid $5,000 to have his wife killed. There was evidence tending to corroborate this testimony from police witnesses who overheard an incriminating conversation between Gilbert and his employer while on a stakeout at the employer’s home.

In completing his application to the Maryland Bar, Gilbert did not mention this civil suit despite the fact that Question 10 of the admission application required the following information: “a complete list of all suits in equity, actions at law, suits in bankruptcy or other statutory proceedings, matters in probate, lunacy, guardianship, and every other judicial or administrative proceedings of every nature and kind, except criminal proceedings, to which I am or have ever been a party: (If ‘None’ so state).” Gilbert answered “None” to this question.

II

Following an evidentiary hearing before an Inquiry Panel, and upon the recommendation of the Review Board, the Attorney Grievance Commission filed its petition for disciplinary action on April 9, 1985, averring that Gilbert had intentionally failed to disclose a material fact, by his negative answer to Question 10 of the admission application, and that he thereby violated the previously quoted disciplinary rules. We referred the matter pursuant to Maryland Rule BV9 b to Judge Raymond G. Thieme, Jr. of the Circuit Court for Anne Arundel County. After two evidentiary hearings, Judge Thieme filed extensive factual findings, concluding that Gilbert had intentionally failed to disclose the civil suit; that the information thereby withheld was of ⁴⁸⁸ material fact; that the Character Committee, the State Board of Law Examiners, and this Court were deliberately deprived of material information; and that Gilbert had thereby violated DR 1-101(A) and DR 1-102(A)(1) and (4). Gilbert has taken exception to Judge Thieme’s finding that he intentionally failed to disclose the Bankers Life litigation.

Specifically, he objects to Judge Thieme’s finding that he largely completed his application on May 17, 1980, and held it for three days before submitting it on May 20, 1980. He also contends that Judge Thieme could not properly find that he gave varying explanations for his failure to disclose Bankers Life on his application and that the language of Question 10 was clear. While Gilbert now concedes that Question 10 requires the inclusion of all civil suits, he argues that applicants might think that Question 9(c) and (d) 2 required disclosure of all lawsuits where money is sought and that Question 10 concerns only civil suits other than where money is sought. Furthermore, as evidence that he misread Question 10, Gilbert notes that ⁴⁸⁹ there were five other civil suits that he did not list in response to that question.

He insists the failure to list these suits could not have been purposeful because their disclosure would not have prejudiced his application. At the first hearing before Judge Thieme, Gilbert said that he did not remember why he answered “none” to the application’s question about involvement in civil litigation. He suggested that he misread the question, and that the haste with which he completed the application contributed to this misreading. He claimed that he would have answered Question 10 correctly if he had not misread it.

Furthermore, he maintained that he had disclosed the existence of judgments against him in answer to Question 9 of the application, and that he also revealed his involvement in “lawsuits” in the character interview. He suggested that the Character Committee had focused on his criminal record and thus precluded him from making a more detailed disclosure of his involvement in “lawsuits,” specifically the Bankers Life case. In his factual findings, Judge Thieme characterized the language of Question 10 as very clear. He did not believe that Gilbert completed the application in any particular hurry.

He noted that Gilbert admitted that he had the application for some time and had procrastinated in filling it out. From the dates of Gilbert’s signatures on the application and its addendum, Judge Thieme concluded that he completed Question 10 at least three days before submitting the application, and that this fact undermined his claim of hurried preparation. Judge Thieme also found significant Gilbert’s failure to disclose the Bankers Life suit at any time during his protracted admission process. While recognizing that Gilbert had mentioned “some civil suits,” Judge Thieme observed that he provided no details beyond those concerning an $88 judgment contained in his answer to Question 9.

Moreover, he noted that when Gilbert was asked about the reasons for the police suspecting his involvement in his ⁴⁹⁰ wife’s murder, he responded only that his in-laws had been pursuing a vendetta, failing to mention that Judge Proctor had found “overwhelming evidence” that he had caused his wife’s death. Although Judge Thieme acknowledged the concentration on Gilbert’s criminal record during the admission process, he observed that Gilbert controlled the flow of information during the hearings. Furthermore, he said that the informality of the process provided ample opportunity for Gilbert to volunteer information omitted from his application. Judge Thieme’s factual findings are, of course, prima facie correct and Gilbert’s exception to the intent finding will not be disturbed unless clearly erroneous.

Attorney Griev. Comm’n v. Kemp, 303 Md. 664, 674 , 496 A.2d 672 (1985). Based on our review of the record, we are unable to say that Judge Thieme’s finding that Gilbert intentionally failed to disclose the Bankers Life suit was clearly erroneous. Judge Thieme clearly did not believe Gilbert’s explanation for his failure to disclose Bankers Life.

Ordinarily, the factfinder may believe or disbelieve a witness’ testimony. Gray v. Dep’t of Correction, 230 Md. 508, 511-12 , 187 A.2d 860 (1963). Question 10 plainly asks applicants to list their involvement in civil - litigation. That a law school graduate would not understand this question strains our imagination, as it did of Judge Thieme.

The dates on the application do indicate, as Judge Thieme found, that Gilbert completed the application over a three-day period, not in haste as Gilbert claimed. See In re Application of G.L.S., 292 Md. 378, 389 , 439 A.2d 1107 (1982) (application on its face contradicted applicant’s claim of hurried preparation). Furthermore, Judge Thieme did not conclude that Gilbert gave varying explanations for his failure to disclose Bankers Life. Rather, he characterized Gilbert’s explanation as “several species of the claim that he misread question 10.” And although by a footnote he took cognizance of Gilbert’s testimony before the Inquiry Panel, Judge Thieme did not rely on such testimony, but rather on Gilbert’s testimony at ⁴⁹¹ the hearing before the court.

We thus find no merit in Gilbert’s exceptions relating to Judge Thieme’s finding of intent. Gilbert has also excepted to Judge Thieme’s conclusion that the non-disclosure was material. He argues that the information requested by Question 10 had no bearing on the principal issue of his present moral character. He suggests that the Character Committee evinced no interest in his involvement in civil litigation and thus would not have investigated the Bankers Life suit had it been disclosed.

Further, he contends that his comment that he had been involved in “lawsuits” sufficiently alerted the Committee to the need for further inquiry. Gilbert also argues that the Bankers Life suit involved the same issues as were involved in the criminal case and that by disclosing and discussing at length the indictment for the murder of his wife, he disclosed all the information that would have been available in the Bankers Life suit. In rejecting these arguments, Judge Thieme said that the Character Committee had no reason to question Gilbert about his involvement in civil litigation since he answered “none” to Question 10, and only revealed the $88 judgment against him listed in Questions 9(c) and 9(d). Given the committee’s close questioning of Gilbert concerning the murder charges, Judge Thieme found that his failure to disclose Judge Proctor’s finding of involvement in his wife’s death was of benefit to him in the character assessment process.

Nor did Judge Thieme find merit in Gilbert’s contention that disclosure of the criminal indictment was tantamount to disclosure of the civil action. He said: “This is not true. The criminal charges against Gilbert were never tried and no evidence of his involvement in Mrs. Gilbert’s death was adduced. Gilbert was free to characterize the charges against him, which he did in a very self-serving manner.

The civil action, on the other hand, including an affirmative defense alleging that Gil ⁴⁹² bert caused his wife’s death, was tried to a conclusion. Bankers Life presented evidence of Gilbert’s involvement in that murder. A detailed summary of this evidence was included in Judge Proctor’s opinion which concluded: ‘[T]he evidence is overwhelming that Gilbert intentionally caused the death of his wife in order to reap the harvest, namely, the proceeds of these two life insurance policies____’ This contrasts sharply with Gilbert’s evaluation of the criminal charges as the groundless products of a family vendetta or inept prosecution. “Judge Proctor’s findings destroy the credence of Respondent’s assertion that he had nothing to