Maryland State Bar Ass'n v. Boone

Hammond, C. J., delivered the opinion of the Court. A. Gordon Boone was admitted to the Bar of Maryland in 1937 and practiced law in Baltimore County until he was convicted of mail fraud in the United States District Court for the District of Maryland on March 5, 1964. On the following day, he addressed a letter to the Chief Judge of the Circuit Court for Baltimore County in which he tendered his resignation as a member of the Bar and requested passage by the judges of that court of an appropriate implementing order. The judges disbarred Boone from the further practice of law on March 10, 1964.

Pursuant to Code (1968 Repl. Vol.), Art. 10, § 18, the Clerk of the Court of Appeals, having received a certified copy of the Circuit Court’s order, struck Boone’s name from the register of those authorized to practice law in Maryland. Boone was incarcerated under Federal detention from March 25, 1964, until April 14, 1965, when he was paroled. He was released from parole on March 25, 1967.

The following December he applied to Governor Tawes for a pardon. The request was denied. An application to the President of the United States for executive clemency has not yet been answered. On April 28, 1969, Boone filed a petition for reinstatement as a lawyer in the Circuit Court for Baltimore County.

The court ordered that the petition be served on the president of the Baltimore County Bar Association. After a hearing on June 24, 1969, the court that day ordered Boone reinstated as a member of the Bar of Maryland, with the passive acquiescence of the Baltimore County Bar Association. Upon learning of the court’s action, the Board of Governors of the Maryland State Bar Association, Inc. (the Association) at a special meeting held on July 21, 1969, ⁴²³ authorized and directed the appointment of counsel to represent it in ascertaining and exercising all the rights and remedies available to the Association: “to proceed by way of intervention, petition for re-hearing, appeal, original petition or otherwise, in the matter of the reinstatement of A. Gordon Boone in order that the interests of the public, the Bench, the Bar, and this Association in the said proceedings may be fully served.” On July 24, 1969, counsel for the Association appealed to this Court from the order of the Circuit Court reinstating Boone. On the same day they moved the Circuit Court that the Association be allowed to intervene, for a new trial, for a rehearing, and for vacation of the order of June 24.

The court gave Boone until August 19 to answer. He did so and there the matter has rested in the Circuit Court, pending the action of this Court on the appeal. Boone asks this Court to dismiss the appeal because (1) admittedly the Association “was not a party to the proceedings before the Circuit Court for Baltimore County,” and (2) the motions of the Association in the Circuit Court had not been acted on and the appeal was premature. On October 6 last we heard argument on Boone’s motion to dismiss and the Association’s answer in opposition and on its motion for a remand of the case without affirmance or reversal under Rule 871 a for further proceedings and judicial consideration.

The latter motion urges that the rights of the public will not otherwise have been protected and that the purposes of justice will be served only by allowing the Association to present to the Circuit Court the contentions it makes in support of its motions in the Circuit Court. In those motions it sets forth that an important purpose and function of the Association is to aid the sound administration of justice and to uphold standards of integrity and honor in the legal profession, that it, as the corporate entity ⁴²⁴ composed of and representing “a majority of all lawyers practicing law in this State,” has a special obligation to safeguard the rights of all citizens of the State from invasions by persons not qualified “to honor the important trust reposed in attorneys as officers of the Court serving the public.” The Association, it alleges, believes that Boone’s reinstatement will seriously damage public confidence in the courts and in the legal profession. It alleges serious shortcomings and defects in procedure and evidence, sáying: “The Baltimore County Bar Association * * * took no position either by its Answer as filed, or by its representative, Giles Parker, and other members of the Executive Council who were present at the hearing. The Baltimore County Bar Association’s absence of a position, either supporting or opposing the Petition, and the absence of any individual’s objection, coupled with the lack of notice to this Association, resulted in the absence of anyone to represent the interests of the Bar and of the public in developing testimony and argument at the hearing before this Court.

As a direct result of said failures, this Court was prevented from hearing relevant examination of witnesses, additional relevant testimony, and made no substantive inquiry into many of the critical issues in this case.” It says further that Boone’s crime was not against an individual but rather one “perpetrated upon the public of this State,” that it involved serious moral turpitude, that as an unpardoned felon Boone cannot vote or hold many public offices and as a matter of law the court could not properly admit him to be an officer of the court, and that there was no probative evidence of the absolutely necessary element of rehabilitation. In addition, at the hearing before us, the Association took the position that it was improper, if not a vitiation of the court’s right to ⁴²⁵ act, for certain members of the Circuit Court for Baltimore County who are or had been in very close association with Boone — politically, economically, socially or in the practice of law- — to have sat in the case. We have concluded that Boone’s motion to dismiss must be granted, albeit not for the reasons he gave. The Association has the proper objective public interests in the matter which it has asserted and those interests have been recognized and given effect by the rules of this Court.

Maryland Rule BV 1 b says: “ ‘Bar Association’ means either the Maryland State Bar Association or the bar association in each county * * Rule BV 2 a authorizes the Association to conduct investigations of attorneys, and Rule BV 3 authorizes it to file charges in court (see also Code (1968 Repl. Vol.), Art. 10, § 13), and Rule BV 6 e 2 makes the provisions of BV 3 (Charges — Subsequent Pleadings) and Rule BV 4 (Trial) applicable to proceedings instituted for reinstatement. We said in Rheb v. Bar Association, 186 Md. 200, 205 , and In the Matter of Lombard, 242 Md. 202, 207 , that “[i]n the last analysis the duty rests upon the courts and the profession as a whole, to uphold the highest standards of professional conduct and to protect the public from imposition by the unfit or unscrupulous practitioner.” (Emphasis added.) The Association as a statewide body is the formal entity of “the profession as a whole.” It may well be that if anyone other than the lawyer involved had a right to appeal an order of reinstatement, the proper, direct and pervading interest the Association had and has in whether Boone should have been reinstated would have entitled it to come to this Court on appeal either from that order or a failure to allow intervention even if it had not been a party when the order complained of was passed. Weinberg v. Fanning, 208 Md. 567, 570-571 , citing Hall v. Jack, 32 Md. 253 .

The resolution of this question becomes immaterial in light of the established and consistently adhered to practice in Maryland that there is no right of appeal in cases of admission to the Bar or refusal to disbar or reinstate ⁴²⁶ ment to the Bar after disbarment to anyone other than the lawyer involved. The common law on the point was reviewed in 1953 by the United States Court of Appeals for the District of Columbia in Brooks v. Laws, 208 F. 2d 18, 25 . There Judge Prettyman for the Court cited the statute of 1402, 4 Henry IV, c. 18, providing in part that “* * * all the Attornies shall be examined by the Justices, and by their Discretions their Names put in the Roll * * *,” and said: “In Maryland the distinction between barristers and attorneys did not exist, and practicing lawyers were ‘attorneys.’ The statute of 4 Henry IV, above quoted, was apparently deemed to be in force and applied to all lawyers. In 1715 the Maryland Assembly enacted a statute that ‘no attorney, or • other person whatsoever, shall practice the law in any of the courts of this province, without being admitted thereto by the justices of the several courts, who are hereby empowered to admit and suspend them.’ This appears to have been the only Maryland statute relating to the admission of attorneys in effect in 1799, when Herty’s Digest was published, or in 1799-1800, when Kilty’s Laws of Maryland was published.

There was in Maryland an act passed in 1783 which gave to a rejected applicant in the courts of first instance an appeal to the superior courts, but this statute apparently expired by its own terms after three years. This right of appeal was considered by the Court of Appeals of Maryland in State v. Johnston in May, 1786. It is plain from that report that no appeal existed other than the strictly limited one granted by that statute.” In State v. Johnston, 2 Har. & McH. 160, Luther Martin, then the Attorney General of Maryland, sought to reverse the action of a lower court in admitting to practice one who had been a tory. The appellate Court dis ⁴²⁷ missed the appeal and refused to grant certiorari, without assigning reasons for its action.

On the strength of the reported arguments of counsel, the case has been regarded as authority for the proposition that in the absence of statutory authority an appeal will not be allowed in the case of admission, discipline or readmission of a lawyer and that the appellate Court will not grant the writ of certiorari to review the matter. In Petition of Brack, 187 Md. 407, 408 , the Court said: “As was pointed out in the case of In re Williams, 180 Md. 689 , reported in full in 23 A. 2d 7 , no appeal in cases of disciplinary action against attorneys existed to this Court prior to the Acts of 1929, Chapter 370, Section 10F, Flack’s Code, Article 10, Section 17. This section provides: ‘Every attorney who shall, after a hearing held as hereinbefore prescribed, be found guilty of professional misconduct, malpractice, fraud, deceit, crime involving moral turpitude or conduct prejudicial to the administration of justice, shall have the right of appeal to the Court of Appeals of Maryland, as in civil cases, except the Court of Appeals shall have the right to review the entire proceedings and affirm, modify, alter or reverse the order from which said appeal is taken as the substantial merits of the cause and the ends of justice may require.’ “By the statute this appeal is given to the attorney found guilty and not to any other person. “It was pointed out by this Court in the very recent case of Rheb v. Bar Association of Baltimore City, 186 Md. 200 , 46 A. 2d 289 , that, since the Acts of 1929, no rules have been adopted relating to disbarment or discipline of attorneys.” ⁴²⁸ In Milio v. Bar Association, 227 Md. 527 , we held that Maryland Rule 886 b, which deals with the scope of appellate review in disbarment cases, did not enlarge the right of appeal under the present § 17 of Art. 10 of the Code. Section 22 of Art. 10, “Reinstatement after Pardon,” provides that “[t]he provisions of this article relating to hearing and appeal in proceedings for suspension and disbarment shall be applicable to proceedings for reinstatement under this section.” In In re Meyerson, 190 Md. 671, 676-677 , the Court entertained the appeal of a disbarred lawyer who had been denied reinstatement and Judge Markell for the Court said: “Under the Act of 1937 [§ 22 of Art. 10 of the Code] application 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 ⁴²⁹ gives weight on appeal to the decision of the lower court.” In 1965 this Court promulgated rules governing disciplinary proceedings, including reinstatement proceedings, under the sub-title “BV” of the Maryland Rules. These rules do not change anything here