Admission of Brown

BELL, C.J.

Dissents.

Dissenting Opinion by BELL, Chief Judge.

To qualify to take the Maryland Bar Examination, and thus, for admission to the Bar of Maryland, an applicant “must have completed the pre-legal education necessary to meet the minimum requirements for admission to an American Bar Association approved law school,” Rule 3 of the Maryland Rules Governing Admission to the Bar, and have graduated, or be unqualifiedly eligible for graduation, from an ABA approved law school. Rule 4(a).1 In addition, he or she must apply to take the examination, Rule 2(a), (c)2 and Rule 6(a), and be of “good moral character” and “fit[ ] for the practice of law.” *61Rule 5(a).3 As to the proof of the latter, the burden is on the applicant. Rule 5(a).

Rule 5 prescribes the procedure by which the moral character and fitness of an applicant for admission to the Bar of Maryland is assessed and whether he or she will be admitted is determined. It is a three step process: the Character Committee conducts an investigation, consisting of, inter alia, interviewing the applicant, verifying the accuracy of representations in the questionnaire, contacting references, evaluates the applicants character and fitness for the practice of law, and reports the results, with its recommendation, to the Board of Law Examiners. Rule 5(b)(1).4 If its investigation or *62review reveals grounds for recommending denial of the applicant’s application, the Committee must conduct a hearing, at which the applicant may be represented by counsel, offer evidence and testify, and a transcript of which will accompany its report and recommendation to the Board. Rule 5(b)(2).5 The Board reviews the Committee’s report and recommendation and, if the Committee conducted a hearing, the transcript of the hearing. It will conduct a hearing if it concludes that there are grounds for recommending denial of the application. The Board submits its report and recommendation to this Court. Rule 5(c).6 Unless the applicant withdraws his or her application, this Court will hold a hearing on “the records made before the Character Committee and the Board.” Rule *635(d)(3).7 That hearing will either be on a show cause order requiring the applicant to show cause why the Board adverse recommendation should not be accepted, Rule 5(d)(1);8 see Application of Hyland, 339 Md. 521, 526, 663 A.2d 1309, 1311 (1995), or, when the Board recommends admission, contrary to the Committee’s recommendation that the application be denied, on exceptions filed by the Committee. Rule 5(d)(2).9

As required by Rule 5(b), the Character Committee interviewed the applicant, investigated his character, including his criminal record, and held a hearing at which it took testimony and evidence relating to his character and his post-conviction rehabilitation. It found that the applicant did not possess the quality of character necessary for admission to the Bar. Therefore, the Committee reported to the Board, that the applicant had not proven by clear and convincing evidence that he had been sufficiently rehabilitated. Accordingly, it recommended to the Board that the applicant’s application for admission be denied.

Subsequently the Board of Law Examiners, under Rule 5(c), has the responsibility to review the Character Committee’s findings, make an independent determination as to the applicant’s character and rehabilitation, and report, with recommendation to the Court of Appeals. Not only does the Board review the Committee’s report and recommendation, but it is also a first-level fact-finder. This is so because, pursuant to Rule 5(c), the Board, under some circumstances, is required to *64hold an evidentiary hearing, at which evidence is accepted and testimony is taken, which entails observing witness demeanor and making credibility determinations, just like a trial court.10 The Board, therefore, often makes, and, in fact, is required to make, factual findings, whether they are contradictory to those of the Character Committee, or not.

The Board held a hearing in this case, at which the applicant, and others, testified. After this hearing, the Board made its own factual findings and recommendations. The Board, unlike the Character Committee, determined that Brown had been rehabilitated and presently possessed good moral character and fitness to practice law in this state. Thus, it recommended to the Court of Appeals that the applicant be admitted to the Bar. In so recommending, the Board must have found the applicant’s explanations regarding his original crime, his court-ordered restitution, his failure to note his conviction on his law school application, his flawed resume, and his misrepresentation of himself as an attorney credible, and must have believed him to be a candid witness. Otherwise, it would not have recommended his admission.

The applicant seeks admission to the bar after conviction of bank fraud, a crime implicating the applicant’s honesty, an attribute particularly important in a lawyer. Fellner v. Bar Ass’n, 213 Md. 243, 131 A.2d 729 (1957); In re Meyerson, 190 Md. 671, 59 A.2d 489 (1948). Such a conviction is not absolutely disqualifying, however. There is no litmus test for moral character or fitness for the practice of law. Allan S., 282 Md. at 690, 387 A.2d at 275. This Court has, however, enunciated factors and considerations to be considered:

“Where, as here, an applicant for admission to the Bar is shown to have committed a crime, the nature of the offense must be taken into consideration in determining whether his present moral character is good. Although a prior convic*65tion is not conclusive of a lack of present good moral character, particularly where the offense occurred a number of years previous to the applicant’s request for admission, it adds to his burden of establishing present good character by requiring convincing proof of his full and complete rehabilitation. Thus, a prior conviction must be taken into account in the overall measurement of character and considered in connection with other evidence of subsequent rehabilitation and present moral character. It is not without significance in this regard, as bearing upon moral fitness, that an applicant for admission to the bar refuses to admit his criminal conduct.
“The ultimate test of present moral character, applicable to original admissions to the Bar, is whether, viewing the applicant’s character in the period subsequent to his misconduct, he has so convincingly rehabilitated himself that it is proper that he become a member of a profession which must stand free from all suspicion. That the absence of good moral character in the past is secondary to the existence of good moral character in the present is a cardinal principle in considering applications for original admission to the Bar.”

Allan S., 282 Md. at 690, 387 A.2d at 275.

Although “we do not apply the ‘substantial evidence’ test applicable to court review of decisions of administrative agencies” and we are required to “make our own independent evaluation of the applicant’s present moral character based ‘upon the records made by the Character Committee and the Board,’ ” Application of Allan S., 282 Md. 683, 691, 387 A.2d 271, 276 (1978), quoting Rule 4 c, now Rule 5(d)(3), the Board’s recommendation, whether it is that an applicant does not possess the requisite moral character fitness, id. at 690-91, 387 A.2d at 276; Application of Hyland, 339 Md. at 536, 663 A.2d at 1316, or that the applicant has the requisite moral fitness, Application of A T., 286 Md. 507, 515, 408 A.2d 1023, 1028 (1979), is, nevertheless, entitled to great weight. Indeed, that this Court accepts the recommendation of the Board is the rule and the failure to do so, the exception. See In the Matter of the Application of William H. Hyland, 339 Md. 521, *66536, 663 A.2d 1309, 1316 (1995); In the Matter of the Application of Charles M., 313 Md. 168, 178, 545 A.2d 7, 12 (1988); In re Application of Maria C., 294 Md. 538, 451 A.2d 655 (1982); In re Application of G.L.S., 292 Md. 378, 439 A.2d 1107 (1982); In the Matter of the Application of AT., 286 Md. 507, 515, 408 A.2d 1023, 1028 (1979). See also In re Sanderson, 387 Md. 352, 875 A.2d 702 (2005); In re Costanzo, 385 Md. 122, 867 A.2d 1039 (2005); In re Lawson, 380 Md. 194, 844 A.2d 405 (2004); In re Application of Rosendale, 372 Md. 691, 816 A.2d 68 (2003); In re Application of Alonso, 372 Md. 136, 812 A.2d 291 (2002); In re Gardner, 368 Md. 505, 796 A.2d 90 (2002); In re Levenson, 356 Md. 1, 736 A.2d 1056 (1999); In re Alexander, 355 Md. 284, 734 A.2d 241 (1999). In fact, in the previous thirty years, we have refused to accept the Board’s recommendation only nine times out of an approximate sixty-five cases. See In re Application of Boccone, 373 Md. 358, 818 A.2d 1077 (2003) (order only); In re Hersh, 354 Md. 329, 731 A.2d 438 (1999) (order only); Application of Vann, 349 Md. 101, 707 A.2d 87 (1998) (order only); Application of Dortch, 344 Md. 376, 687 A.2d 245 (1997) (order only); Application of J.L.L., 304 Md. 394, 499 A.2d 935 (1985) (order only); Application of George B., 297 Md. 421, 466 A.2d 1286 (1983); Application of K.B., 291 Md. 170, 434 A.2d 541 (1981); Application of David H., 283 Md. 632, 392 A.2d 83 (1978); Application of Allan S., 282 Md. 683, 387 A.2d 271 (1978). Only in four of these cases did we issue an opinion rather than an order. See Application of George B., 297 Md. 421, 466 A.2d 1286 (1983); Application of K.B., 291 Md. 170, 434 A.2d 541 (1981); Application of David H., 283 Md. 632, 392 A.2d 83 (1978); Application of Allan S., 282 Md. 683, 387 A.2d 271 (1978).

In those instances in which we declined to follow the Board’s recommendation with respect to the grant or denial of an applicant’s application for admission, factual determinations were not dispositive or even in conflict. In fact, the facts in those cases were clear and undisputed and there were no credibility issues to be resolved. In Allan S, for example, the parting of the ways between the Court and the Board had to do with the weighing process. The fact of his criminal behav*67ior having been established, what it predicted with respect to his future actions and what to make of the subsequently-established facts pertaining to the applicant’s rehabilitation were the matters to be considered and weighed. The Board’s recommendation focused backward on the criminal action and on its disbelief of the motive for it offered by the applicant. Rejecting that approach, this Court pointed out:

“We think the Board has afforded controlling weight to that part of the applicant’s testimony that involves the 1971 theft and has given insufficient consideration to his present moral character and the evidence of his rehabilitation since the commission of that offense. It must be remembered that applicant’s first offense occurred in 1966, eleven years prior to the hearing before the Board; the 1971 offense occurred almost seven years prior to that hearing. While there can be no doubt that each of these offenses, though petty in nature, involved moral turpitude, the applicant readily admitted that he committed the crimes even though he was never tried or convicted of either of them. In this respect, he was most candid with the Board and we cannot agree, in view of the record in this case, that the applicant did not admit that his acts were morally wrong and indefensible. On the contrary, he did so repeatedly, both before the Character Committee and the Board, and we are satisfied that he is deeply distressed that he participated in such conduct.”

282 Md. at 691, 387 A.2d at 276.

In David, II., the Court again weighed the facts and circumstances differently than did the Board. 283 Md. at 640, 392 A.2d at 87. Again, the facts of the criminal conduct were not at issue, nor were there any factual determinations to be made that depended on the applicant’s credibility. Whereas the Board, on this occasion, focused on the applicant’s future, as it projected it from the applicant’s behavior subsequent to the criminal activity that was the subject of the proceedings, concluding “that his actions since 1972 speak as elegantly, or more so, than his oral testimony, and that the risk [of recurrence] is slight. In short, we are satisfied that (the applicant) *68has been rehabilitated,” id. at 638, 392 A.2d at 86, the Court focused on the past and, distinguishing Allan S., noted:

“Unlike the circumstances in Allan S., the present applicant’s criminal conduct, by his own admission, persisted over an extended period of time. The thefts committed by the applicant were not, as in Allan S. isolated criminal transgressions; rather, they constituted a continuous course of criminal activity which the applicant did not see fit to terminate until after his graduation from college.”

Id. at 640, 392 A.2d at 87. That and the fact that

“the applicant’s determination to conclude his criminal activity apparently did not flow from an ‘inborn’ resolve to change his moral character; rather, the change was wrought as a result of the consequences to the applicant which emanated from his prosecution for those theft offenses for which he was apprehended by the police. Had he not been caught, the applicant, according to his own account, may well have continued to steal,”

id. at 640, 392 A.2d at 87-88, and that “the rehabilitative period” was only approximately five years and the applicant was rather young, only 28, and could reapply, the Court concluded:

“at this time the applicant has not ‘so convincingly rehabilitated himself that it is proper that he become a member of a profession which must stand free from all suspicion.’ ”

Id. at 641, 392 A.2d at 88, quoting Allan S., 282 Md. at 690, 387 A.2d at 275.

The nature of the criminal activity engaged in by the applicant in K.B. was also not in dispute; as characterized by the Court, “[i]n the present matter, we do not deal with a single transgression. Four separate fraudulent applications for credit accounts are involved.” 291 Md. at 177, 434 A.2d at 545. And those multiple transgressions involved some 100 transactions and extended over a period of about fifteen months. Id. at 177-78, 434 A.2d at 545. The Board’s recommendation was based on its conclusion that the applicant had a “sole slip from grace” and that he had made restitution for the *69fraudulent transactions. The Court rejected this charitable characterization of the applicant’s criminal actions and determined that the Board’s conclusion with respect to restitution did not follow from the record evidence:

“After K.B.’s arrest in November of 1975 he continued to work for the title company until his sentencing in July of 1976. There is no indication that the applicant undertook to make any restitution during that period. The applicant testified he made a payment of several hundred dollars to Amoco prior to leaving for prison. Following his confinement, the applicant had been employed continuously since February of 1977, but he did not resume making any restitution until November 1977. The plan of partial restitution, which was acceptable to Amoco, was arranged by K.B.’s attorney in obvious preparation for the November 1977 hearing before the Board. We are far from convinced that the plan of partial restitution was prompted by a full and complete rehabilitation which occurred two years earlier at the time of arrest.”

Id. at 179, 434 A.2d at 545. Further weighing the evidence as to rehabilitation, the Court expressed concern with regard to what it discerned to be a “continuous course of criminal activity ... perpetrated by a mature adult. K.B. was 28 and 29 years of age when the fraud scheme was in effect.” Id. at 180, 434 A.2d at 546. We concluded that we had:

“the very distinct impression that this applicant’s past criminal problem resulted from the perceived necessity to maintain a desired level of social prestige which, in this case, involved operating a car, and from a willingness to risk violating serious criminal laws in order to do so. Every experienced practitioner knows of cases where an attorney has yielded to the temptation to ‘borrow’ clients’ funds entrusted to him because of the pressure to maintain a certain social status while waiting for some fees to come in. It is because of the great risk to the public in admitting to the Bar one who has exhibited this serious character flaw that we require the evidence of present moral fitness to *70‘unequivocally demonstrate ... full and complete rehabilitation.’ ”

Id. at 181, 434 A.2d at 546, quoting David H., 283 Md. at 641, 392 A.2d at 88.

George B., 297 Md. 421, 466 A.2d 1286, is reflective of what was essentially a policy decision by the Court. There, the applicant was denied admission, although both the Board and the Character Committee recommended to the contrary, because only six years had elapsed since his release from prison for the felony offense of attempted armed bank robbery, which, we noted, involved an exchange of gunfire between the applicant and a bank guard and, therefore, was “a criminal transgression of a most serious nature, exceeding that involved in In re Application of G.L.S., 292 Md. 378, 439 A.2d 1107 (1982),” 297 Md. at 421, 466 A.2d at 1286, and “th[at] rehabilitative period ... [was] of insufficient duration, considering the gravity of the offense committed, to permit establishment of the requisite moral character fitness prerequisite to admission to the Bar of Maryland.” Id. at 422, 466 A.2d at 1286.

Those cases are not this one. While in those cases, there were no critical credibility issues that had to be resolved contrary to their resolution by the Board, only questions concerning the appropriate balance to be struck in the interest of the integrity of the profession, here, the applicant’s credibility and the issue of proper balancing are inextricably bound up with factual issues viewed and resolved one way by the Committee and the majority, as per the majority opinion, and the opposite way by the Board. For example, central to the question of the applicant’s rehabilitation was the question of whether he had made restitution and whether it was complete restitution. In turn, a related question involved money allegedly in a safe deposit box, and, in particular, its existence, its disposition, and whether, as contended by the applicant, it was used for the payment of restitution.

Where the facts are not in dispute, how one evaluates them does not implicate fact-finding and credibility determinations. *71Where, however, the facts are disputed so that credibility determinations are implicated, as for example, relating to motive, the factual findings by the trier of fact, in this instance the Board, may be critical. In order to evaluate the facts, it must be clear what the facts are and what the facts are will, in many instances, turn on whether the trier of fact credits or discredits a particular witness.

There are factual disputes in this case, largely those relating to motive and intent, but factual determinations, nevertheless. And those determinations depend on assessment of the witness’s, in this case, the applicant’s, credibility. With respect to the money in the safe deposit box, the Board found that “many credible explanations were given as to the existence of the money in the safe deposit box. The money was never properly accounted for.” Although it did not expressly state that it accepted, and believed, the applicant with respect to the issue, the opposite conclusion would be illogical and inconsistent, given the Board’s recommendation that the applicant be admitted to the Maryland Bar. Similarly with regard to the whether the applicant completed restitution, i.e. paid it in full, rather than stating an unequivocal finding that the applicant had made full restitution, the Board commented, “there is conflicting evidence” on the issue. Its recommendation that the applicant be admitted speaks volumes, however, and suffices to make clear that it resolved the conflict in the applicant’s favor.

A question was raised as to whether the applicant, while his character review was proceeding and he was attempting to arrange restitution, misrepresented himself as an attorney in telephone calls to a bank employee. The applicant did not dispute the representation, but maintained that his motive was simply to get the employee to return his call, which she had not done earlier. Again the Board did not specifically find that the applicant’s motive was as he testified; however, again, such a finding was the only one consistent with the Board’s recommendation. If the motive was found to have been for some other purpose, I simply cannot imagine the Board recommending the applicant’s admission.

*72The same observations can be made with respect to the applicant’s explanation for the failure to disclose his conviction on his law school application and for the errors on his resume. More telling than the lack of explicitness of the Board’s conclusions concerning these particular issues is the fact that the Board had determined that the applicant was morally fit for admission to the Bar. Explanations that were misleading, or intended to be, would not qualify the applicant for such a recommendation.

The majority, in reviewing the Board’s recommendation that the applicant be admitted, gives absolutely no deference or even any consideration to the Board’s factual findings regarding his intent and credibility. Instead, it questions the applicant’s motives at every turn and resolves issues as to which credibility is dispositive, without any regard to the Board’s determination. It refers to the applicant’s alleged failure to complete restitution as a dereliction, In the Matter of the Application of Emsean LaVinci Brown for Admission to the Bar of Maryland, 392 Md. 44, 57, 895 A.2d 1050, 1057 (2006), notwithstanding that the Board necessarily must have found that the applicant completed restitution. It views the applicant’s explanation concerning the money contained in the safe deposit box as a “complex labyrinth,” and suggests, again contrary to the necessary finding of the Board, that the applicant has actually not completed restitution at all. Id. at 56-57, 895 A.2d at 1057. The Board’s finding as reflected in its recommendation to the contrary notwithstanding, the majority characterizes as concealment the applicant’s explanation for his failure to note either a gap or a prison sentence on his resume, id. at 58, 895 A.2d at 1058 (2006), and, in effect makes a finding of its own, “it is difficult, if not impossible, to believe that anyone could forget that he spent ten months in jail.” Id. at 58, 895 A.2d 1058. Regarding the attorney misrepresentation issue, without any reference to what the Board must have found in that regard, the majority expresses disbelief that the applicant would have engaged in such behavior solely out of *73sheer frustration. Id. at 59, 895 A.2d at 1058. In short, the majority directly contradicts the record made by the Board.

Rule 5(d)(3), to be sure, requires that “[proceedings in this Court ... be on the records made before the Character Committee and the Board.” I am also aware that in Allan S., this Court pointedly stated that our comment in Character Committee v. Mandras, 233 Md. 285, 288, 196 A.2d 630, 631 (1964), that “the Board’s findings of fact are presumptively correct or at least entitled to weight where based upon the testimony of witnesses whose credibility may be in issue,” predated the addition of Rule 5(d)(3) to the Rules Governing the Admission to the Bar Of Maryland. The suggestion is, of course, that the fact-finding of the Board no longer is presumptively correct.

That the proceedings in this Court are to be on the records made before the Committee and the Board does not mean, and cannot mean, that the Court may pick and choose the fact-findings to credit. It may, of course, determine whether any factual finding is clearly erroneous, but that does not equate to its being permitted to choose between conflicting findings.11 Otherwise, the Board’s recommendations would be reduced to simple suggestions and its role would be essentially meaningless. Certainly this is not the intent of Rule 5(d)(3) or of our jurisprudence on the subject.

I accept the Board’s factual findings, and with those findings properly considered in the balance, I believe the Board got it right. I would admit the applicant to the Bar of Maryland.

. Rule 4(a) of the Rules Governing Admission to the Bar of Maryland provides:

"(1) In order to take the bar examination of this State a person either shall have graduated or shall be unqualifiedly eligible for graduation from a law school.
"(2) The law school shall be located in a state and shall be approved by the American Bar Association."

. Rule 2, as pertinent, provides:

“(a) By Application. A person who meets the requirements of Rules 3 and 4 may apply for admission to the Bar of this State by filing an application for admission, accompanied by the prescribed fee, with the Board.
*61"(c) Time for Filing.
"(1) Without Intent to Take Particular Examination. At any time after the completion of pre-legal studies, a person may file an application for the purpose of determining whether there are any existing impediments to the applicant's qualifications for admission.
"(2) With Intent to Take Particular Examination. An applicant who intends to take the examination in July shall file the application no later than the preceding January 16 or, upon payment of the required late fee, no later than the preceding May 20. An applicant who intends to take the examination in February shall file the application no later than the preceding September 15 or, upon payment of the required late fee, no later than the preceding December 20...." Rule 6(a) provides:
“(a) Filing. An applicant may file a petition to take a scheduled bar examination if the applicant (1) is eligible under Rule 4 to take the bar examination and (2) has applied for admission pursuant to Rule 2 and the application has not been withdrawn or rejected pursuant to Rule 5. The petition shall be under oath and shall be filed on the form prescribed by the Board.”

. Rule 5 governs “Character review.” Section (a) provides:

"(a) Burden of Proof. The applicant bears the burden of proving to the Character Committee, the Board, and the Court the applicant’s good moral character and fitness for the practice of law. Failure or refusal to answer fully and candidly any question set forth in the application or any relevant question asked by a member of the Character Committee, the Board, or the Court is sufficient cause for a finding that the applicant has not met this burden.
“(e) Continuing review. All applicants remain subject to further Committee review and report until admitted to the Bar.”

. "(b) Investigation and report of character committee. (1) On receipt of a character questionnaire forwarded by the Board pursuant to Rule *622(d), the Character Committee shall (A) through one of its members, personally interview the applicant, (B) verify the facts stated in the questionnaire, contact the applicant’s references, and make any further investigation it finds necessary or desirable, (C) evaluate the applicants character and fitness for the practice of law, and (D) transmit to the Board a report of its investigation and a recommendation as to the approval or denial of the application for admission.”

. "(b)(2) If the Committee concludes that there may be grounds for recommending denial of the application, it shall notify the applicant and schedule a hearing. The hearing shall be conducted on the record and the applicant shall have the right to testify, to present witnesses, and to be represented by counsel. A transcript of the hearing shall be transmitted by the Committee to the Board along with the Committee’s report. The Committee’s report shall set forth findings of fact on which the recommendation is based and a statement supporting the conclusion. The Committee shall mail a copy of its report to the applicant, and a copy of the hearing transcript shall be furnished to the applicant upon payment of reasonable charges.”

. "(c) Hearing by board. If the Board concludes after review of the Committee’s report and the transcript that there may be grounds for recommending denial of the application, it shall promptly afford the applicant the opportunity for a hearing on the record made before the Committee. The Board shall mail a copy of its report and recommendation to the applicant and the Committee. If the Board decides to recommend denial of the application in its report to the Court, the Board shall first give the applicant an opportunity to withdraw the application. If the applicant withdraws the application, the Board shall retain the records. Otherwise, it shall transmit to the Court a report of its proceedings and a recommendation as to the approval or denial of the application together with all papers relating to the matter."

. “(3) Proceedings in the Court under this section shall be on the records made before the Character Committee and the Board. If the Court denies the application, the Board shall retain the records.”

. “(d) Review by court. (1) If the applicant elects not to withdraw the application, after the Board submits its report and adverse recommendation the Court shall require the applicant to show cause why the application should not be denied.”

. "(2) If the Board recommends approval of the application contrary to an adverse recommendation by the Committee, within 30 days after the filing of the Board’s report the Committee may file with the Court exceptions to the Board's recommendation. The Committee shall mail copies of its exceptions to the applicant and the Board.”

. The determination of the facts is based in part upon the credibility of the witness. In this way, when his or her motive or intention is at issue, an applicant's credibility is indelibly bound with the facts, and must be reviewed accordingly.

. Application of Hyland, 339 Md. 521, 539, 663 A.2d 1309, 1317 (1995) provides an example of the proper use of the records developed before the Committee and the Board, to uncover and focus on any inconsistencies, contradictions, and/ or evasiveness that the applicant's testimony before the Committee and the Board may contain.