Admission of Brown

• Decision Date: 11 April 2006
• Docket Number: Misc. Docket No. 10 September Term, 2005.
• Citation: 895 A.2d 1050,392 Md. 44
• Parties: In the Matter of the Application of Emsean L. BROWN for Admission to the Bar of Maryland.
• Court: Court of Special Appeals of Maryland

Page 1050

895 A.2d 1050

392 Md. 44

In the Matter of the Application of Emsean L. BROWN for Admission to the Bar of Maryland.

Misc. Docket No. 10 September Term, 2005.

Court of Appeals of Maryland.

April 11, 2006.

James Paul Krawczyk, Jr. (Warnken, L.L.C.), Towson, for Applicant.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, and GREENE, JJ.

BATTAGLIA, Judge.

In this case we are asked to decide whether to grant the petition for admission to the Maryland Bar of Emsean L. Brown who was convicted of bank fraud in 1991, was incarcerated, and since that time has misrepresented various aspects of his history. We determine that Mr. Brown presently does not possess the requisite moral character required to be admitted to the Maryland Bar.¹

I. Background

In 1989, Emsean L. Brown, then 24, and an employee at the Citizen's Bank of Maryland ("Bank"),² with knowledge of how it would be used, began providing customer information — specifically, customers' names, addresses, account numbers, and balances — to Ramona Baldwin, not an employee of the bank, who used the information to obtain Maryland drivers' licenses to gain access to monies from customers' accounts through checks and bank cards provided by Mr. Brown. Mr. Brown and Ms. Baldwin shared the proceeds of the fraud with two additional Bank employees who were also involved in the scheme and an individual employed at the Motor Vehicle Administration who helped obtained the fraudulent drivers' licenses. The Bank suffered a total loss of $94,268.55 as a result of the scheme, $14,250.00 of which Mr. Brown received.

In 1990 the Bank discovered the scheme and terminated Mr. Brown's employment. Mr. Brown subsequently confessed to his involvement and pled guilty to the crime of bank fraud in the United States District Court for the District of Maryland. On February 12, 1991, he was sentenced to ten months imprisonment, three years probation, and the payment of $14,250.00 in restitution. He was released from prison in January of 1992, and, as a condition of probation, was required to pay $100 each month toward his restitution. In January of 1995 Mr. Brown completed his probation. He also stopped making restitution payments at this time.

In February, 1999 Mr. Brown applied to the University of Baltimore School of Law and marked "No" on his application in response to two pivotal questions:

Have you ever been charged with, arrested for, convicted of, pled guilty or nolo contendere to a violation of any law, including driving under the influence of drugs or alcohol? If so, please provide a complete, factual description of the circumstances surrounding the incident(s) and the court's disposition of the charge(s).

Have you ever been discharged from employment or the armed forces under conditions other than honorable?

Mr. Brown, when applying for admission to the Maryland Bar, represented that he answered "no" to the first question because he thought his conviction had been expunged. He also stated that he had notified the law school when he discovered his conviction had not been expunged. He never explained why he answered "no" to the discharge from employment question.

Additionally, another question on the law school application required Mr. Brown to:

List all full-time employment, including military service, beginning with the most recent. Account for all periods since high school graduation, any intervals between your college years and all positions held since college graduation. If you have spent any significant length of time not in school or working, please explain.

In response, Mr. Brown wrote, "PLEASE SEE RESUME," and attached a resume that listed him as having been employed with the Richard Leahy Corporation from February, 1990 through August, 1992, although, in fact, Mr. Brown actually had been incarcerated from April, 1991 to January, 1992.

On May 16, 2003, Mr. Brown filed an application with the State Board of Law Examiners ("Board") for admission to the Maryland Bar pursuant to Rule 2.³ On the application, Mr. Brown disclosed that in 1990 he was convicted of one count of bank fraud and that he failed to affirmatively answer the question on his law school application regarding whether he had ever been convicted of a crime. Mr. Brown did not reveal on his bar application that he also had failed to disclose on his law school application that he had been terminated from employment with the Bank or that he had failed to disclose his lapse in employment history because of his incarceration. Pursuant to Rule 5(b)(1),⁴ Mr. Brown's bar application was forwarded to a member of the Character Committee.

During the Committee's investigation, the member assigned the investigation requested that Mr. Brown provide a description of the occurrence that led to the bank fraud conviction and the details surrounding his repayment of the ordered restitution in the form of a sworn affidavit, to which Mr. Brown responded by letter. The Committee member also requested from the law school Mr. Brown's complete law school file, which included correspondence between the Dean, Mr. Brown, and the Public Defender who had represented Mr. Brown when he was convicted. The Committee member subsequently recommended that the Committee conduct a hearing regarding Mr. Brown's application pursuant to Rule 5(b)(2)⁵ because there were grounds for denying his application; a hearing was held on September 26, 2004, at which Mr. Brown was represented by counsel. A Circuit Court Judge, for whom Mr. Brown had clerked, testified on his behalf, and another Circuit Court Judge submitted a letter in support of his admission.

The Committee hearing record revealed that Mr. Brown first notified the law school of his conviction in November, 2000, the first semester of Mr. Brown's second year of law school, when Mr. Brown explained to the Dean, first verbally and then in written form, that he believed he did not have to disclose his conviction because the Public Defender who represented him had assured him that his record would be expunged. Mr. Brown also alleged that at the time of the hearing the University's website contained an application that only required disclosure of convictions that had not been expunged or pardoned, although he was unsure whether the application contained that language at the time that he applied for admission to the law school. With regard to this explanation, the Committee found that, prior to entering law school, Mr. Brown had taken paralegal courses at Montgomery College, which included "Introduction to Legal Systems," "Criminal Law," "Legal Research," and "Business Law," and thus understood the distinction between a conviction and an arrest such that he knew that the law school application was soliciting the disclosure of both. Moreover, the Committee noted that Mr. Brown's Public Defender denied ever advising Mr. Brown that his record would be expunged.

Mr. Brown also asserted that, after being terminated by Citizen's Bank, he gave the head teller of the branch office where he worked a key for a safe-deposit box containing approximately $7,000 to $8,000 in cash, which was then recovered by the Bank to be applied towards restitution. The Committee found, however, that Mr. Brown failed to prove that he was entitled to credit for the $7,000 to $8,000 because there was no reference to the discovery and seizure of the money in the federal presentence report nor was there any documentation to support his claim. The Committee hearing also revealed that, notwithstanding the $7,000 to $8,000 in cash Mr. Brown claims the Bank recovered, as of the hearing date, Mr. Brown's court-ordered restitution, in fact, had not been satisfied and that Mr. Brown only began to arrange for satisfaction of the restitution through contact with SunTrust Bank when the hearing was scheduled in contemplation of his admission to the Bar. Additionally, the Committee found that the Circuit Court Judge who testified on Mr. Brown's behalf, although informed before employing Mr. Brown of the bank fraud conviction, was not aware of either Mr. Brown's failure to disclose his conviction on his law school application or his failure to complete restitution.⁶

The Committee determined that:

A. That the bank fraud conviction in 1990 coupled with the facts and circumstances surrounding the scheme to defraud bank customers is a course of conduct which involved serious moral turpitude.

B. That the Applicant's failure to address, acknowledge and satisfy the restitution requirement of the Judgment in a Criminal Case (Case No. JH-90-0376) is not consistent with the fitness required to practice law in Maryland.

C. That the Applicant's failure to make a full and complete disclosure of the criminal incident on his Law School application, whether in response to the question regarding criminal arrest/conviction or the question regarding discharge from employment, is not justified by the belief, past or present, or the assertion, that the criminal record is expunged.

D. The accomplishments and development of the Applicant are not without merit and recognition. However, he has not yet met the burden of proving, by clear and convincing evidence good moral character and present fitness to practice law in the State of Maryland.

and recommended that Mr. Brown's application to the Bar be denied.

Pursuant to Rule 5(c),⁷ the State Board of Law Examiners then gave Mr. Brown an opportunity to be heard on April 15, 2005. Mr. Brown appeared with counsel and presented five witnesses, all of whom had worked with Mr. Brown, including: three Circuit Court Judges, all of whom testified telephonically, a former Assistant Public Defender, and the General Counsel for Morgan State University. Mr. Brown also supplied the Board with numerous documents, including affidavits attesting to his character from: the mother of his child, stating that, after Mr. Brown's paternity was established, Mr. Brown had become an active...