In Re Application of Howard C.

Smith, J, dissenting: At a time when many people are lamenting the apparent breakdown in moral standards in this nation and condemning the permissiveness of our society, I feel impelled to raise my voice in protest against the admission of yet another confessed thief to the Bar of this Court. See In re Application of Allan S., 282 Md. 683 , 387 A.2d 271 (1978), for another instance in which a petty thief was permitted to become a Maryland lawyer. Because the order in this matter reflects none of the facts, I shall set forth such as are necessary to a clear understanding of the matter before the Court. I The applicant was born July 11, 1949.

When he filed his application for registration as a candidate for admission to the Maryland Bar he was asked by question 11 to submit a record ²⁴⁶ of any criminal proceedings which might have involved him. He was admonished, however, not to “report any arrest or court proceedings, the record of which [had been] expunged pursuant to law.” Question 17 requested him to list “any unfavorable incidents in [his] life, whether at school, college, law school, business or otherwise, which m[ight] have a bearing upon [his] character or [his] fitness to practice law, not called for by the questions contained in th[at] questionnaire or disclosed in [his] answers.” He referred to an attached letter in answer to both of those questions. In it he proceeded to make known to the Board of Law Examiners the fact that he had been twice involved in shoplifting incidents, the records of which, he said, had been expunged. The facts were all brought out at hearings before the Character Committee of the Seventh Judicial Circuit and at three hearings before the Board of Law Examiners.

The applicant served as president of student government at the University of Maryland, as president of thé Inter-residents Hall Association which he said administered all dormitories on the University’s College Park campus, and prior to that as president of the Hill Area Council. He stated the latter group represented one-half of the dormitories on the University campus located geographically on the part of the campus known as “the Hill.” Later he was designated as chief justice of the Honor Court of the University of Baltimore Law School. In the latter position it was his responsibility, as he put it, “to preside over hearings involving the reported incidents of violations of the Student Honor Code.” Moreover, he had attended Randolph Macon Academy. In response to a question as to the honor code there, he said it was, “Thou shalt not lie, steal or cheat.” On April 24, 1974, when he was 24 years of age, the applicant was involved in a shoplifting incident where he entered a supermarket near the University.

As he put it, he "was arrested or. . . detained by the store manager for taking chicken and cheese.” Inquiry was made of him as to whether he had any money. He responded to that question and a direction to describe this first incident: A Yes, and I did basically go in to pick up ²⁴⁷ something. I went in to get something. I forget what.

And when I got in there I just had picked up the chicken and the cheese. Q Where did you place it that time? A Down my pants. Q And when you say “down your pants,” how did you — A Down the front of my pants.

Q Down the front of your pants? A Yes. The applicant received probation befoi e judgment at the trial on that charge. He said he was “very upset” by the occurrence.

The record was expunged on June 20, 1977, a short time prior to his filing on July 5,1977, of his application for registration as a candidate for admission to the Bar. The application was actually dated June 1, 1977. The applicant formerly resided in Cumberland. He entered law school in August 1974.

The following summer he journeyed to Cumberland for the purpose of borrowing money from a Cumberland bank. This set in motion the incident of June 18, 1975. He said because of the lateness of the hour he did not plan to return to Baltimore that day. The applicant met a friend who offered to let him stay at his home across the line in Pennsylvania.

Fie accompanied the friend into a store. The friend apparently intended to buy some soda. The applicant was questioned by the Character Committee as to what took place involving his conduct: Q You didn’t have any money with you when you went into the store? A I had some money.

I didn’t — I certainly didn’t have enough to pay for the steaks. Q So did you and Steve discuss it before you went in? A No. Steve was not a part of that. Q All right.

So you went into the store, and if you can picture yourself in the store at that time, did you walk directly to the meat counter? ²⁴⁸ A No. I think Steve went to get .some sodas and then I went to the meat counter and he followed me. I said, “I am going to pick up some steaks,” and I put them down my pants. Q All right. And then what did you do?

A Well, we proceeded to go towards the front of the store and we were stopped. In describing the Cumberland incident before the Board the applicant testified: On the way to the farm he said let’s stop in and get some beer at the store, and when we were in the store, I took some steaks and put them down my pants. Steve did not know that I was going to do that. I mean, he saw me do it and he said, “What are you doing?” and I told him what I wa,s doing, and he said, “You are crazy,” or something to that effect.

As we went to leave the store, we were both stopped, we were both arrested, we were taken by the Police to a Magistrate. We were booked and we stood trial, and both of us were given probation before verdict. The applicant attributes his stealing to immaturity. A board member questioned him and he responded: Q Mr. C. ... as President of the Student Government, that was a position of great responsibility I would take it; was it not?

A I would say; yes. Q I would think so. And would you characterize that as a position that required a great deal of maturity in dealing with the Student Body, the Student Government, the University Government, dealing with a budget? A Yes; I would say so, sir.

Q I would think so. And you discharged that responsibility with maturity? A I believe so, sir. There are people at the University that would challenge that. ²⁴⁹ The applicant says that he has matured since these incidents, a part of which maturing process he attributes to the influence of his wife whom he met but a short time prior to the second incident.

When that second incident took place he had already completed his course in criminal law at the University of Baltimore Law School. He claims to have done no stealing since the Cumberland episode. Originally we were provided with an exhibit in the form of a letter to the applicant from his attorney dated September 3, 1976, but we were not provided with a copy of an expungement order relative to the second incident. The letter advised the applicant that the attorney “ha[d] filed and processed in the District Court for Allegany County a Petition for Expungement.” It further stated, "In checking with the Court we find that the Petition has been granted and the record involving your violation has been properly expunged.” At one of the hearings before the Board, however, the applicant said that he had “never received an order of expungement, so [he was] not positive.” Before the Character Committee he adverted several times to his belief that under a local statute applicable to Allegany County a record “is expunged automatically within 90 days.” We were unable to locate such a statute.

We noted that Chapter 260 of the Acts of 1975 enacted Maryland Code (1957,1976 Repl. Vol., 1979 Cum. Supp.), Art. 27, § 737 relative to expungement of police and court records. We further noted that § 737 (c) provided that the time for filing a petition for expungement was “not ... earlier than three years nor later than eight years after the date the judgment or order was entered or the action was taken which terminated the proceeding,” with exceptions not applicable to this matter, and thus that the record should not have been expunged when it appeared to have been.

As a result of examination of the file in this case it became apparent to the Court that there had been other incidents of thievery in which the applicant had been involved, as was brought out at the hearing before the character committee. ²⁵⁰ The record reflects questioning by Ronald A. Willoner, Esq., a member of the Committee, and the answers of the applicant: Q I am going to ask you this other question. I don’t know whether it is even a fair question, but I am going to ask it to you. Have you — after the age of 17, did you ever shoplift anything else other than at these two times? A You asked me that when we met the last time, and then said “No, I don’t want to hear the answer.” I stated somewhat to the effect that — you know, when I think about it, I think I have.

I couldn’t give you the number, but it was not a habit. It wasn’t something that I did regularly. I can’t say I never did it, and yet I can’t say, you know, “I did it ten times or five times.” I am sure I did. I know it would never have been anything but food.

I never took — you know, I was never so indiscriminate that I was taking — that I was just regularly going out and taking like something from a sporting goods store and something from a clothing store. But — no, I can’t say I never have not taken anything since I was 17, but I can say that it was not a regular — something I did regularly. Since we had before us an implication of other stealing incidents and the fact that thé expungement order might have been defective, we passed an order on July 5, 1979, remanding the matter "to the State Board of Law Examiners for further investigation by it or the Character Committee, or both, into both of such matters.” On the remand the Board was provided with an expungement order concerning the Allegany County incident passed on July 31, 1979, pursuant to a petition to reopen the case and to direct "a second expungement.” The Board in its report to us after the remand summarized the applicant’s version of some of the other stealing incidents in which he had been involved: First of all he described a raid that he and other members of the Allegany High School football team ²⁵¹ made on a food table set out by the alumni of Bruce High School in Westernport, Maryland, for its team, alumni and fans. He described a series of incidents which occurred while in his senior year in high school at McIntyres Food Store in Cumberland which sold Cokes, cookies and soft drink on the honor system, and other small items.

Applicant testified that it was the practice, in which he participated, to "bolt the bill.” He testified that his participation was not often, and that he recalled getting Cokes and cupcakes without paying for all the items he