In Re Meyerson

Markell, J., delivered the opinion of the Court. This is an appeal from an order of the Supreme Bench of Baltimore City denying an application of a disbarred lawyer for reinstatement. Code 1939, Art. 10, secs. 22, 17. Whether the Legislature could compel the courts to reinstate a pardoned convict or any other disbarred ⁶⁷⁵ lawyer if he is not in fact a proper person to be permitted to practice, is a question not presented.

The Act of 1937, ch. 370, (Art. 10, sec. 22) purports to require reinstatement only if the court shall be satisfied that the applicant is “worthy of reinstatement.” Art. 10, sec. 3, authorizes admission to practice only if this court shall find the applicant “to be of good moral character and worthy to be admitted;” this court shall prescribe “generally such * * * rules as may be necessary or convenient to carry out the provisions of this section.” This court has prescribed rules providing, among other things, for Character Committees to investigate each applicant’s “moral character qualification for Bar membership” and to make “their recommendation as to the character and fitness of the applicant to be admitted to the Bar”. The requirements that an applicant for original admission to practice shall be “of good moral character and worthy to be admitted” and an applicant for reinstatement after disbarment shall be “worthy of reinstatement” are expressions of the same principles with respect to different facts, which require different evidence. Both are the converse of the statutory grounds of disbarment, “professional misconduct, malpractice, fraud, deceit, crime involving moral turpitude, or conduct prejudicial to the administration of justice”. Art. 10, secs. 16, 17.

In all these respects, “the statute has done but little, if anything, more than enact the general rules upon which the courts of common law have always acted.” Ex parte Secombe, 19 How. 9, 14 , 15 L. Ed. 565 (per Taney, C. J.), quoted in Rheb v. Bar Association of Baltimore, 186 Md. 200, 203, 204 , 46 A. 2d 289, 291 . “The question is, whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion. * * * It is not by way of punishment; but the court, in such cases, exercise their discretion whether a man whom they have formerly admitted is a proper person to be continued on the roll or not.” Ex parte Brownsall, 1778, 2 Corp. 829 (Lord Mansfield), quoted in Ex parte ⁶⁷⁶ Wall, 107 U. S. 265, 273 , 2 S. Ct. 569 , 27 L. Ed. 552 , and in Rheb v. Bar Association of Baltimore, supra, 186 Md. at page 205 , 46 A. 2d 289, 291 . The requirement that an applicant for admission be of “good moral character”, and the fact that of the six statutory grounds of disbarment only the first two (tautological) grounds are limited to professional, as distinguished from personal offenses, illustrate the breadth of Lord Mansfield’s statement and of the later authorities applying various statutory provisions which are elaborations of his brief statement. The next three grounds of disbarment indicate lack of “good moral character”, necessary to be “worthy to be admitted”—not mere “indulgence in what might be termed the minor vices, of a purely personal character”, which “does not amount to professional misconduct”. Rheb v. Bar Association of Baltimore, supra, 186 Md. at page 204 , 46 A. 2d 289 . “Conduct prejudicial to the administration of justice” may include a criminal offense which, impairs the basic objects of a lawyer’s profession, though not committed in his professional capacity, and though he has not been convicted or indicted, e. g., lynching.

Ex parte Wall, 107 U. S. 265 , 2 S. Ct. 569 , 27 L. Ed. 552 . Appellant cites cases from many jurisdictions, as holding that disbarment does not in all circumstances forever prevent reinstatement under inherent or statutory powers of the courts. We see no reason to question this generalization. In some jurisdictions it is held that on a proper showing a disbarment order may be set aside; in some, that this cannot be done but reinstatement may be affected as a new admission to practice (In re Boone, C. C., 90 F. 793 ) and may even be subject to procedural requirements (e. g., reference to committees or bar examinations) of an original application for admission.

In re Keenan, Petitioner, 310 Mass. 166 , 37 N. E. 2d 516 , 137 A. L. R. 766; State v. Gowland, 174 La. 351 , 140 So. 500 ; In re Stevens, 59 Cal. App. 251 , 210 P. 442 . In Maryland, by statute, original applications are made to this court. Art. 10, sec. 2.

Under the Act of 1937 applica ⁶⁷⁷ tion for reinstatement must be made to the court which issued the disbarment order, and “the provisions * * * relating to hearing and appeals in proceedings for * * * disbarment shall be applicable to proceedings for reinstatement * * *”. The Act of 1937 is applicable only to pardoned convicts, but by implication, we think, the same procedure is applicable to other disbarred lawyers. In the absence of any rule on the subject under Art. IV, section 18A of the Constitution (effective January 1, 1945), we have no doubt as to the validity or application of these different provisions for original applications and applications for reinstatement. It is not inconsistent for original applications for admission, usually uncontested, to be made to this court and disbarment and reinstatement proceedings to be conducted in the local courts.

The provision for hearing in open court and the opportunity of the judges (some of whom may have heard the disbarment proceedings) to see and hear the witnesses is a substitute for reference of an application for reinstatement to the State Board of Law Examiners and the Character Committee, and gives weight on appeal to the decision of the lower court. Whether an application for reinstatement is called an application to set aside a disbarment order or an application for admission to practice, its essential nature is the same. “A subsequent petition for admission to the bar involves a new inquiry as to whether, in the interval following the rendering of the judgment of removal, the petitioner has become a proper person to hold such office.” In re Keenan, Petitioner, supra, 310 Mass. at page 170 , 37 N. E. 2d at page 519 . Such an inquiry is directed to the facts of the particular case, but seems to be approached in a somewhat different attitude in different jurisdictions. In re Stump, 272 Ky. 593, 597 , 114 S. W. 2d 1094, 1096 , the court classified the many decisions as establishing three rules, a “lax rule”, a “strict rule”, and a “reasonable middle rule.” It would serve no useful purpose to review the multitude of cases ⁶⁷⁸ in different jurisdictions.

Some cases, we think, do reflect a “lax rule” which is not consistent with the principles, regarding admission and disbarment, shortly-stated by Lord Mansfield, expanded in the Maryland statutes and applied in rules of this court and in decisions of this court and the Supreme Court. As disbarment is not punishment, likewise we think due regard for the administration of justice does not permit disbarment and reinstatement to be made mere adjuncts to reform schools and the parole system. The authorities that seem to us the best considered take a different view, which is consistent wtih the principles recognized in Maryland. In Matter of Kaufmann, 245 N. Y. 423, 427 , 157 N. E. 730, 731 , it was held that after a lawyer, automatically disbarred upon conviction of a felony (in that case, conspiracy against the United States), has been pardoned, he may, if he can, upon application for reinstatement, prove his innocence of the crime of which he was convicted.

Chief Judge Cardozo said: “Precedents cited to the contrary hold no more than this, that reinstatement will not follow automatically from pardon without more. People ex rel. Johnson v. George, 186 Ill. 122 , 57 N. E. 804 . There must be convincing proof of innocence before pardon will restore to the fellowship of the bar.

Even innocence of crime will not suffice if there has been a failure to live up to the standards of morality and honor. Pardon does no more than open the door to an inquiry that would otherwise be barred. That much, however, it does.” 245 N. Y. at page 430 , 157 N. E. at page 733 . It was apparently undisputed that nothing short of innocence of the particular crime involved in that case would justify reinstatement.

Attorney General (later Chief Justice) Stone’s recommendation of pardon to the President was based on belief in innocence. In the same case Judge Cardozo also said: “No doubt the attorney seeking reinstatement has the burden of satisfying the court of his fitness to be restored to so honorable a fellowship. For the welfare and repute of the ⁶⁷⁹ profession the order of disbarment stands until the presumption of its correctness has been persuasively rebutted.” 245 N. Y. at pages 428, 429, 157 N. E. at page 732 . The Supreme Judicial Court of Massachusetts has recently said: “A judgment of removal of a person from his office of attorney at law does not have the effect merely of removing him.

It amounts to an adjudication of the facts upon which the removal was based. While the judgment remains unreversed the adjudication of facts stands against the person removed. It is evidence against him upon his subsequent petition for admission to the bar. [Citing cases.] It is conclusive of his lack of moral character at the time of his removal from office. And it continues to be evidence against him with respect to lack of moral character at later times in accordance with the principal that ‘a state of things once proved to exist may generally be found to continue.’ [Citing case.] Whatever the offense for which a judgment of disbarment was entered, the person disbarred has a heavy burden on a subsequent petition for admission to the bar to overcome by evidence the weight of the facts adjudicated by such judgment and to establish affirmatively that since his disbarment he has become ‘a person proper to be held out by the court to the public as trustworthy’ ”.

Matter of Keenan, 313 Mass. 186, 219 , 47 N. E. 2d 12, 32 . The Supreme Court of Louisiana has said: “It may well be assumed, therefore, that the Court has the inherent power, under such rules as the Court may deem proper, to revoke the decree of disbarment and reinstate the attorney in his license to practice law. But the Court would not be disposed to exercise that power, no matter how sympathetic the members of the Court might be, unless perhaps, on being convinced that an error was committed, or an injustice done, in rendering the decree of disbarment. There is no such showing in this case.” In re Wolff, 173 La. 257 , 136 So. 583, 584 .

In State v. Gowland, 174 La. 351 , 140 So. 500 , on an application for reinstatement twenty years after conviction of forgery, on a plea of guilty, disbarment and pardon, ⁶⁸⁰ the court manifested somewhat greater disposition to exercise the power to reinstate, holding that under applicable statutes the question whether the .applicant could qualify for readmission should first be taken up by the examining committee. Appellant was admitted to the Bar in 1936 and began practice in Baltimore. He was then 22 years old. In December, 1939 he was appointed a special assistant to the Attorney General in the trial of tax cases, in the Department of Justice.

In April, 1937 he met a young married woman (now his wife), who was then 17 years old. In February, 1940 he filed for her a bill for a divorce, which was granted in May, 1940. In August, 1941 she became pregnant by him and told him her condition. “Just prior thereto” or “in the fall of 1941” he announced his engagement to another woman. In January, 1942 an abortion upon the divorced woman was effected at the house of a midwife, where she stayed eight days.

The day after the child was born dead she ran out of the house, the midwife after her, got a taxi and went to her sister’s. A surgeon was called, found her very ill, and sent her to Mercy Hospital, where she stayed more than a month, until February 15th. Appellant told the surgeon that although he did not think he was responsible for her condition, he was willing to take care of the hospital expenses. Meyerson v. State, 181 Md. 105, 112 , 28 A. 2d 833 .

On February 21st she went to the State’s Attorney’s office and talked to the Deputy State’s Attorney and an Assistant. She testified before the grand jury. On March 5th appellant, his father and the midwife were presented, and on March 13th indicted, for causing, and conspiring to cause, an abortion upon her. On March 27, 1942 all three defendants were tried before Judge Smith, without a jury, and found guilty.

At the trial the “prosecuting witness” testified that she had been “going with” appellant for five years; she did not see appellant at the midwife’s house at any time, he was not at the house; she “loved the father of the baby ⁶⁸¹ and wanted to have the baby”; appellant did not at any time say to her that he didn’t want her to have the baby, he wanted her to have this baby; appellant’s father took her to the midwife’s house “for a rest for a few weeks”; appellant, after he learned she wanted to have the baby, never discussed with her any disposition of the affair other than for her to have the baby, and then he decided if she wanted to, she should. The State, to show surprise, offered to. examine the witness about her testimony before the grand jury. Counsel for the witness, appointed by the court at this stage, advised her that this testimony might incriminate