Matter of GLS

FRANK A. KAUFMAN, Chief Judge,

dissenting:

The opinion of all of the other judges of this Court fully sets forth the factual and legal issues. Accordingly, they will not be reviewed again in this dissent. The majority opinion states (at 380) that “in eases involving federal felons, this Court holds that the applicant must exhaust federal pardon procedures. Such exhaustion will provide this Court with an investigative mechanism it otherwise lacks.” (Footnote omitted). Because I believe that the majority’s holding establishes a procedure which conflicts with principles of law established by the Supreme Court of the United States and by the United States Court of Appeals for the Fourth Circuit and also because I believe that this is not a case in which this Court should take a position different from that taken by the Court of Appeals of Maryland, the highest court of the state, I respectfully dissent. I do so most reluctantly, since I not only stand alone in this dissent but also because of the quality of the opinion filed by the majority.

In establishing what would appear to be a totally new rule, the majority suggests that both the Fourth Circuit and the judges of this Court in In re Braverman, 549 F.2d 913 (4th Cir.1976), “overlooked ... [that] there does exist a federal mechanism to investigate the private and professional character of convicted federal felons,”1 namely the federal pardon mechanism pursuant to which a convicted federal felon can receive a pardon from the President of the United States by submitting his petition for such pardon through the Department of Justice. With all due deference, I suggest that the reason why neither Braverman nor any other federal court, as far as I am aware, has required an attorney who is a convicted federal felon to exhaust the federal pardon procedure before petitioning for membership in the bar of a federal district court is that, as the Supreme Court has taught in In re Isserman, 345 U.S. 286, 288, 73 S.Ct. 676, 677, 97 L.Ed. 1013 (1953), a federal district court should “in the absence of some grave reason to the contrary, follow the finding of the state that the character requisite for membership in the bar is lacking” or is not lacking. Accordingly, unless some very strong need is present, a federal district court should not establish independent procedures and mechanisms to investigate the private and professional character of applicants for admission to the bar of its court but should rely on the procedures and mechanisms which have been adopted by the highest court of the state, working in conjunction with and in review of the lower state courts and the state bar associations. To do otherwise would cause exactly the confusion which Judge Rosenn referred to in his concurring opinion in In re Abrams, 521 F.2d 1094, 1106 (3d Cir.), cert. denied, 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975):

The district court’s action permits Abrams to practice in the state, but not the federal, system. Such an anomaly *382can only lead to confusion in the minds of the public, which justifiably may speculate why an attorney not qualified to practice in a federal court has sufficient moral character to practice in the state court. Unless an exceptional reason of record justifies such disparate treatment, its effect will, in my opinion, render a grave disservice to the public.

That quotation from Judge Rosenn’s concurring opinion in Abrams is set forth word-for-word in Judge Craven’s majority opinion in In re Braverman, supra at 921.

I join the majority in not reading Braver-man so as “to require complete deference in all circumstances to a state court’s decision to admit an applicant to its bar.” (At 378).2 However, I differ from the majority’s analysis of Braverman which, in effect, distinguishes this case from Braver-man. In Braverman, the Fourth Circuit reversed the 6-3 majority opinion of this Court denying Braverman’s application to rejoin the bar of this Court on two grounds:

Because the evidence relied upon by the district court does not support its ultimate finding that Braverman has not been rehabilitated, and because of a proper deference to the considered judgment of the coordinate Maryland Court of Appeals____

In so doing, Judge Craven concluded that Braverman’s responses to questions put to him during an evidentiary hearing before a panel of this Court did not factually justify, either taken alone or in the light of the entire record before the Court of Appeals of Maryland, the conclusion that Braver-man had not been rehabilitated. In the within case, there has been no evidentiary hearing in this Court in connection with the application of G.L.S., nor would there appear to be any need for the same. Rather, the majority of this Court, relying on precisely the same record as that considered by the Court of Appeals of Maryland, reaches a conclusion in direct contravention to that reached by a majority of the judges of that Court, namely, that G.L.S. has not been rehabilitated and is not morally fit for admission to this Court’s bar. The majority of this Court relies most heavily upon G.L.S.’s incomplete answers on his application for admission to the bar of Maryland. There is little question, as is disclosed clearly in Judge Davidson’s majority opinion in In re Application of G.L.S., 292 Md. 378, 439 A.2d 1107 (1982), that G.L.S. did not respond with total candor to certain questions on his application for admission to the bar of Maryland. In her opinion (at 391, 439 A.2d 1107), Judge Davidson quoted from the opinion of the Board of Law Examiners of the State of Maryland, as follows:

To recommend the Applicant for admission involves a compromise with a standard which the Board believes is appropriate — that applicants should fully and comprehensively disclose all requested information. To recommend against admission involves a compromise with those strong perceptions which we have as a result of the hearing that the Applicant has made strides of heroic proportions in the direction of becoming a productive member of society.
Recognizing the parameters of this dilemma, it is the determination of the Board, with the reservation indicated, to recommend the Applicant for admission as having adequately established his fitness, rehabilitation, and present good character.

Further, in her opinion (at 397, 439 A.2d 1107), Judge Davidson noted:

We recognize the the applicant failed to provide complete information on his application for admission to the Bar.

However, after reviewing the circumstances involved, Judge Davidson then wrote (also at 397, 439 A.2d 1107):

Under these circumstances, we cannot conclude that the applicant did not pos*383sess a sufficient degree of candor to qualify for admission to the Bar.

Thereafter, Judge Davidson concluded that “[t]here can be no question that the applicant has been rehabilitated” (at 398, 439 A.2d 1107) and emphasized that there existed “convincing evidence of the applicant’s rehabilitation” (id.).

In distinguishing this case from Braver-man, the majority of this Court points out (at page 378 & n. 2) that in Braverman one member of the Court of Appeals of Maryland dissented from the “virtually unanimous decision” of that Court readmitting Braverman to the bar of Maryland, whereas in this case, the Court of Appeals of Maryland was sharply divided and three members of the seven-member Court dissented from the majority’s holding that G.L.S. had established “his present moral character and fitness to be admitted to the Bar of this State” (at 398, 439 A.2d 1107). I believe that Braverman teaches that proper deference is to be accorded to the judgment of the coordinate Maryland court, regardless of whether there exists a split in the state court; further, I believe that such proper deference is not accorded here by the majority opinion.

I am troubled, also, by the majority’s formulation of a per se federal pardon exhaustion requirement for federal felons who seek admission to the bar of this Court. In so doing, the majority opinion seemingly relies on the views of Judge Digges, who authored the dissenting opinion in the Court of Appeals of Maryland in In re G.L.S. In that dissent, Judge Digges suggested, inter alia, (at 403 & n. 4, 439 A.2d 1107) that since G.L.S. remained unpardoned for his conviction for a federal crime and had not sought from the President of the United States a pardon before applying for admission to the bar of the State of Maryland, the Court of Appeals of Maryland should not reinstate him while G.L.S. “remains an unpardoned felon.” In so suggesting, Judge Digges cited to Chief Judge Hammond’s opinion for a unanimous Court in Maryland State Bar Association v. Boone, 255 Md. 420, 433-34, 258 A.2d 438 (1969). At those pages, Judge Hammond, quoted from an opinion of the Court of Appeals of New York, which in turn quoted from an earlier opinion of then Chief Judge Cardozo, to the effect that “reinstatement will not follow automatically from pardon without more____ Pardon does no more than open the door to an inquiry that would otherwise be barred.” (Emphasis in original). In other words, a pardon by an executive officer, whether a pardon by the United States or by a governor of a state, will not in itself be conclusive. In a given case, it might well be that the state court will desire, before determining whether or not to admit or readmit an applicant to its bar, that the applicant exhaust the available pardon procedure. But there is no indication, as far as I am aware, in any decision, whether it be a federal case or a state case, that such an applicant must always be required to exhaust the pardon procedure. Additionally, as pointed out supra in this dissent, the adoption of any such flat rule means that contrary to the teachings of Isserman and its progeny, this Court would automatically initiate a factual inquiry in addition to and independent of the inquiry of the highest court of the State of Maryland in connection with any application by a federal felon for admission to the bar of this Court. Even if the majority opinion of this Court did not impose the pardon-exhaustion requirement on a per se basis in all cases of the within type, the imposition of such a requirement in this case will result in a factual inquiry in addition to that deemed appropriate and carefully and fully conducted by the State of Maryland concerning G.L.S.’s admission to the coordinate bar of the State of Maryland.3 That, in my opinion, in a close case *384such as this one, is wrong. It brings to mind the old saw: hard cases make bad law. For this is a hard case, as the views of Judge Davidson and of the majority of this Court so clearly reveal. In that context, and with the greatest of respect and admiration for my fellow judges and for the clear, full opinion which they have authored, I hereby dissent.

. In Matter of Roberts, 682 F.2d 105, 108 (3d Cir.1982), the Court, in a per curiam opinion, stated that there "is no federal procedure in the district court for determining an applicant’s fitness to practice law before it.” (Emphasis in original).

. Admission to the bar of Maryland does not automatically require admission to the bar of this Court. Rather, this Court, like every federal district court, possesses independent control over admission, discipline and disbarment of attorneys who practice before it.

. In a given case, if there exists some specific reason for further investigation, or if it is likely that additional facts will be uncovered by such additional inquiry, the pardon route may well be a good one. In addition, in a given case, the type of problem may justify exhaustion of the pardon route. In this case, however, in which there has been a full factual inquiry by the administrative and judicial authorities in Maryland, there would appear no need to require *384G.L.S. to seek a pardon simply to obtain yet another viewpoint.