Application of Overall , 456 Md. 525 ( 2017 )

In the Matter of the Application of Mark Andrew Overall for Admission to the Bar of
Maryland, Misc. Docket No. 16, September Term, 2017, Opinion by Adkins, J.
DENIAL OF BAR ADMISSION—DUTY OF FULL DISCLOSURE—CANDOR
AND TRUTHFULNESS—Applicant for admission to the Maryland Bar had not met the
burden of establishing that he possessed the requisite moral character and fitness for
admission to the Bar of Maryland. Alabama suspended his license to practice law
following several instances of misconduct. Alabama twice denied his request for
reinstatement. The applicant failed to disclose Alabama’s second denial of reinstatement
and did not fully disclose a jury conviction for resisting arrest. He did not supplement his
application with information requested by the State Board of Law Examiners. The
applicant did not provide a credible explanation for these omissions. The Court denied his
admission.
Argued: November 6, 2017
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket No. 16
September Term, 2017
IN THE MATTER OF THE APPLICATION
OF MARK ANDREW OVERALL FOR
ADMISSION TO THE BAR OF MARYLAND
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Opinion by Adkins, J.
Filed: December 18, 2017
We consider whether to grant Mark Andrew Overall’s application for admission to
the Bar of Maryland. The Character Committee for the Sixth Appellate Circuit
(“Committee”) recommended that Overall’s application be denied because: (1) he
demonstrated a lack of candor; (2) his law license had been suspended and not reinstated
in Alabama; and (3) because he did not accept personal responsibility for his actions. The
State Board of Law Examiners (“Board”) unanimously agreed that Overall’s application
should be denied because of his lack of candor in the application process, and the
circumstances of his suspension in Alabama. Both the Committee and the Board concluded
that Overall had failed to demonstrate that he possessed the necessary moral character and
fitness to practice law in Maryland.
BACKGROUND
Overall graduated from law school in 2010 and was admitted to the Bar of Alabama
that same year, working primarily as a criminal defense attorney. In October 2012, Overall
received a private reprimand from the Alabama State Bar for failing to comply with local
scheduling conflict resolution rules. Between October 2012 and May 2013, a number of
complaints were filed against Overall with the Alabama State Bar. The complaints
variously alleged that Overall: (1) failed to appear on behalf of clients, or was tardy; (2)
was underprepared for court, leading to a mistrial; (3) had been found in contempt of court
after being warned about his conduct; (4) improperly altered a subpoena when he was not
authorized to issue subpoenas; (5) improperly filed civil complaints to avoid paying the fee
for a jury demand; (6) had not informed a client about a court hearing; and (7) failed to file
a written response to a Motion for Summary Judgment.
On May 28, 2013, Overall entered a conditional guilty plea to multiple violations of
the Alabama Rules of Professional Conduct (“ARPC”) based on these complaints.1 Overall
agreed to a 91-day suspension held in abeyance and two years’ probation. Additional
complaints were filed with the Alabama State Bar against Overall during his probationary
period. The complaints included circumstances leading to Overall’s conviction in July
2013 for resisting arrest.
Overall was found in contempt of court on November 12, 2012, for failing to appear
on time for a scheduled hearing. He was fined $50.00 and court costs. Overall did not pay
the fine. At the show cause hearing, which had been continued twice at Overall’s request,
the judge imposed an additional fine and court costs. When Overall failed to pay his fines
and costs in either matter, the judge set another show cause hearing. Overall filed a motion
to continue the hearing on the morning it was scheduled to take place. The judge
reluctantly rescheduled the hearing. When the hearing finally took place, Overall was held
in criminal contempt, and he was charged with resisting arrest after being taken into
custody. He was convicted of resisting arrest in Houston County District Court. Overall
appealed, and was convicted again in Houston County Circuit Court in a de novo jury trial
on April 22, 2015.
The other complaints alleged that Overall had engaged in inappropriate lines of
questioning after being told to desist in a criminal trial, and had been found in contempt in
1
Overall pleaded guilty to multiple violations of the Alabama Rules of Professional
Conduct (“ARPC”), specifically multiple violations of Rules 1.3 [Diligence]; 1.4(a)
[Communication]; 8.4(g) [Misconduct].
2
another criminal trial. After receiving these complaints, the Office of General Counsel of
the Alabama State Bar filed a Petition to Revoke Probation based on multiple violations of
the ARPC.2 In August 2013, Overall consented to the revocation of his probation and
agreed to the 91-day suspension. In the consent agreement, Overall admitted to violating
the ARPC as alleged in the Petition to Revoke Probation. Overall was denied reinstatement
in March 2014 and October 2015.
On May 13, 2015,3 Overall filed an application with the Board for admission to the
Bar of Maryland pursuant to Maryland Rule 19-202.4 The Board forwarded Overall’s
application to Character Committee members Alicia Wilson, and later Kamil Ismail, for
2
The Office of General Counsel of the Alabama State Bar alleged multiple
violations of ARPC 3.1 [Meritorious Claims and Contentions]; ARPC 3.2 [Expediting
Litigation]; ARPC 3.4(c) [Fairness to Opposing Party and Counsel]; ARPC 3.5(c)
[Impartiality and Decorum of the Tribunal]; ARPC 8.2(a) [Judicial and Legal Officials];
and APRC 8.4(d) and (g) [Misconduct].
3
Overall had applied to take the February 2015 Maryland General Bar Examination,
but his application was denied because it arrived after the deadline and was substantially
incomplete.
4
The Rules Governing Admission to the Bar of Maryland were renumbered
effective July 1, 2016. Maryland Rule 19-202(a) (derived from former Rule 2 of the Rules
Governing Admission to the Bar of Maryland) provides that:
(a) By Application. An individual who meets the requirement
of Rule 19-201 [Eligibility to Take Maryland General Bar
Examination] or had the requirement of Rule 19-201 (a)(2)
waived pursuant to Rule 19-201 (b) may apply for
admission to the Bar of this State by filing with the Board
an application for admission, accompanied by a Notice of
Intent to Take a Scheduled General Bar Examination, and
the prescribed fee.
3
the investigation and interview required by Maryland Rule 19-203(a)(1).5 Overall was
unsuccessful on the July 2015 General Bar Examination, but successful on the February
2016 Examination.
His application disclosed his conviction for resisting arrest in Houston County
District Court, and the case number. Overall stated that his conviction was “pending
reversal due to lack of jurisdiction.” He did not list his conviction in Circuit Court,
although it occurred before he submitted his Bar Application.
Overall listed some civil actions to which he was a party, but did not list the actions
that the Alabama State Bar had taken against him. Overall also indicated that he had been
admitted to the Alabama Bar, but did not attach a certificate of good standing, or explain
why he was no longer in good standing in the application. Overall responded affirmatively
to the question “[h]ave you ever resigned from or been charged, reprimanded, or otherwise
disciplined by any school, college, or university, or by any trade or professional
organization, at any time for any reason?” He referred to a suspension in school when he
5
Maryland Rule 19-203(a)(1) (derived from former Rule 5 of the Rules Governing
Admission to the Bar of Maryland) provides that:
(a) Investigation and Report of Character Committee. (1)
On receipt of an application forwarded by the Board
pursuant to Rule 19-202 (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 applicant’s 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.
4
was a child, but did not list the actions taken by the Alabama State Bar in his primary
application.
Overall answered “No” in response to the question: “Have there been any
circumstances or unfavorable incidents in your life, whether at school, college, law school,
business or otherwise, which may have a bearing upon your character or your fitness to
practice law, not called for by the questions contained in this questionnaire or disclosed in
your answers?” Overall enclosed a “Disclaimer” with his application, which stated:
Please know that the enclosed application packet that is being
submitted is based on my information given to the best of my
recollection, knowledge, and belief. Much of what is being
asked involves information dating back several years and I may
not remember such events. Any missing or inaccurate
information is simply an error based on my inability to
remember and is not designed to be a misrepresentation or
concealment of such events. Please do not regard any
inaccuracies or missing information as a negative indication or
assessment against my character, integrity, or honesty as it is
not intended to be conveyed in this manner.
(Emphasis in the original).
Overall mailed an addendum (“Addendum”) with his Bar Application, which
contained more information than his initial Application. He included a statement about
employment terminations, his driving record in Alabama, a statement of civil actions,6 and
financial disclosures. Overall provided what he described as “an up to date copy” of his
disciplinary history in Alabama, explaining that he “hope[d] that this will paint the correct
picture of my ability and character as a lawyer and advocate.” His disciplinary history
6
Overall’s statement of Civil Actions did not include the actions the Bar of Alabama
had taken against him.
5
included his contempt citations, the Private Reprimand, the Conditional Guilty Plea, the
Petition to Revoke Probation and the Consent to Revoke Probation, Orders on the Guilty
Plea and Petition, and the Suspension Order. Overall also included the March 2014 Order
denying his reinstatement to the Bar of Alabama, and a number of letters from judges and
attorneys advocating for his reinstatement.
At various times while his application was pending, Overall provided supplemental
information. In October 2015, Wilson sent Overall a letter requesting additional
documentation regarding his: (1) financial obligations; (2) civil actions; (3) criminal
actions; (4) disciplinary record with the Alabama State Bar; (5) detailed information on his
traffic violations; and (6) a “comprehensive list of any complaints and/or contempts that
have been filed against you through any and all bars for which you are affiliated.” Wilson
also asked Overall to explain why each of these issues did not reflect poorly on his “good
moral character and fitness to practice law in Maryland.”
The May 5 and June 6, 2016 Supplements
Overall’s May 5 Supplement disclosed additional traffic citations in Maryland and
Virginia, and updated employment information. His June 6 Supplement responded to
Wilson’s October 2015 letter. He provided more information about his financial
obligations and his civil cases. With regard to most of his civil cases, Overall asserted that
these matters did not adversely affect his moral character or fitness to practice law because
he was “merely asserting [his] constitutional right to seek legal redress in court as provided
by the First Amendment.”
6
Overall also addressed his criminal conviction for resisting arrest. He argued that
the judge improperly failed to notify him of his right to appeal after finding him in
contempt. He provided the case numbers for both the District Court and Circuit Court
proceedings, stated that it was the same criminal action, and identified the Circuit Court
proceedings as an “unsuccessful appeal.” He did not provide more substantial details
regarding the appeal or the proceedings, but insisted that “[t]he judge’s contempt
adjudication was unlawful in several respects and this judge has been cited and reversed
for his improper handling of contempt procedures with lawyers previously by appellate
courts.”
With regard to his disciplinary history, Overall explained:
I believe you have already received my disciplinary history.
Please inform me if this is not accurate. Also please note that
I had no control over the synopses that the Office of General
Counsel generated for the allegations and many of them are
wholly false and are a misrepresentation based on the way they
are written.
(Emphasis in the original). Overall did not disclose that he had been denied reinstatement
again in October 2015.
Overall’s Character Interview
In September 2016, Ismail interviewed Overall. At Ismail’s request, Overall
submitted additional documents, including the judgments of guilt on both his bench trial
and the jury trial. At that time, Overall disclosed that he had taken the New York Bar
Examination. On September 30, 2016, Ismail issued a memorandum recommending that
the Committee hold a hearing before issuing a final recommendation. He identified several
7
concerns regarding Overall’s fitness and suggested that those issues merited a hearing
before the Committee. Specifically, Ismail explained that:
I was concerned about several items that I felt were not
disclosed and/or inadequately disclosed in Mr. Overall’s
application to the Maryland Bar. I raised these matters with
him in our interview, where I did not find his explanations
entirely satisfactory.
***
In our interview, I asked Mr. Overall if he believed his answers,
aside from the attachments, were sufficient to disclose his
Alabama disciplinary proceedings. Mr. Overall responded
affirmatively, noting that the list attached to his application
referenced all the civil and criminal proceedings to which he
was a party, along with the documentation from the
disciplinary proceedings. I asked him whether, apart from the
attachments, the application itself contained disclosure of the
disciplinary proceedings. Mr. Overall eventually
acknowledged reluctantly that it did not.
***
In his original application, Mr. Overall did disclose his
criminal conviction for resisting arrest, which he described as
“pending reversal due to lack of jurisdiction.” At our
interview, he could not explain this contention in a manner that
I could understand. Neither his application nor the attachments
included a second judgment of conviction on this charge, after
a de novo jury trial. Nor did they include an Alabama Supreme
Court denial of his appeal of the disciplinary proceedings. In
light of these omissions, I viewed Mr. Overall’s disclosure as
inadequate. It seemed to me that Mr. Overall does not
sufficiently acknowledge the gravity of the Alabama Bar’s
proceedings against him.
***
Some of Mr. Overall’s characterizations of his clashes with the
Bar and judiciary in Alabama seem at least plausible to me.
Indeed, at least one or two of the clashes appear to have
8
resulted at least in part from matters that arguably reflect no
more than zealous advocacy on behalf of his clients.
At the same time, there are numerous other incidents disclosed
in Mr. Overall’s application and in materials obtained
independently from the Alabama State Bar, including Mr.
Overall’s consent to disciplinary actions, that raise troubling
questions about his diligence, candor[,] and actions that have
not been explained adequately to me by Mr. Overall in our
interview. Moreover, I felt that his disclosures in his
application were inadequate in several respects. Based on the
foregoing, I was unable to conclude that Mr. Overall had
satisfied his burden of showing that he possesses the necessary
good moral character and fitness for the practice of law. . . .
On October 25, the Chair of the Character Committee for the Sixth Appellate
Circuit, Robert Ferguson, sent a letter to Overall notifying him of Ismail’s recommendation
and explaining that the Committee intended to hold a hearing to determine whether he
“presently possess[es] the requisite moral character and fitness to practice law.”7
7
Md. Rule 19-203(a)(2) provides in relevant part that:
If the Committee concludes that there may be grounds for
recommending denial of the application, it shall notify the
applicant in writing and schedule a hearing. . . . The applicant
shall have the right to testify, to present other testimony and
evidence, and to be represented by an attorney. The Committee
shall prepare a report and recommendation setting forth
findings of fact on which the recommendation is based and a
statement supporting the conclusion. A transcript of the
hearing shall be transmitted by the Committee to the Board
along with the Committee’s report. The Committee shall
transmit 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 costs.
9
The December 5, 2016 and February 12, 2017 Supplements
Overall submitted further updates to his application regarding traffic tickets and his
financial status in December 2016. He also included information on disciplinary
proceedings in Alabama. He explained that the Office of General Counsel “has moved to
summarily suspend me due to an alleged failure to pay outstanding costs from previous
proceedings.” Overall claimed that the Alabama State Bar had not complied with
procedural requirements, and that “the costs at issue are exorbitant and I cannot possibly
maintain the payment plans I have with my various creditors and pay the Alabama State
Bar thousands of dollars.” He disclosed that he had filed a Petition for a Writ of Mandamus
with the Alabama Supreme Court to prevent the Alabama State Bar from suspending him.
He stated that the matter was “an administrative suspension” for his failure to pay, and “not
the product of any independent misconduct.” But Overall had already been denied
reinstatement to the Alabama Bar the previous October, and his characterization of the
matter as an “administrative suspension” is contradicted by the facts of his ongoing
suspension for professional misconduct.
Overall filed more supplemental information on February 12, 2017. He disclosed a
change in his employment, updated financial disclosures, and a civil case he had filed in
December 2016 against the Maryland Motor Vehicle Administration.
The May 4, 2017 Supplement and the Character Committee Hearing
Overall provided an additional supplement on May 4, 2017, which identified a
change in his employment, and that he had filed a civil action against Baltimore Gas &
Electric in April 2017. Overall also disclosed that someone had filed an application for a
10
peace order against him in March 2017, but that the case had been dismissed because the
petitioner never appeared in court.
The Committee held a hearing on May 4, 2017, to address the following issues: (1)
the private reprimand by the Alabama Bar; (2) his probation and subsequent revocation
and suspension from the Alabama Bar; (3) the two denials of reinstatement to the Alabama
Bar; and (4) Ismail’s concern regarding Overall’s candor and inadequacy of disclosure in
his application. Overall appeared without counsel and testified on his own behalf.
The Character Committee’s Findings of Fact and Conclusions
On June 5, 2017, the Committee issued a report unanimously recommending against
Overall’s admission to the Bar “based on the panel’s assessment that Overall was not
candid in his application and submissions, as well as at the hearing.”
With regard to the Alabama State Bar Disciplinary proceedings against Overall, the
Committee found that:
[A]fter a few years in practice, Mr. Overall became the subject
of disciplinary proceedings prompted by various complaints,
mostly from judges before whom he appeared, who asserted
instances of failure to appear in court, improper court filings,
and other matters including criminal contempt for failure to
pay a civil contempt fine. At least some of Mr. Overall’s lapses
appear to have prejudiced his clients. Mr. Overall was also the
subject of Bar complaints and a malpractice action by former
clients.
Ultimately, these matters culminated in a charge of resisting
arrest after his conviction for criminal contempt. Mr. Overall
was initially convicted in a bench trial on this charge of
resisting arrest. He disclosed this conviction on his Maryland
Bar [A]pplication, but with the qualifier that it was “pending
reversal due to lack of jurisdiction.” However, in his May 13,
2015 application, including his affirmation of a full and candid
11
disclosure, he failed to disclose that he had also subsequently
been convicted on April 24, 2015, after a de novo jury trial.
The omission of such important information—a jury trial
conviction several weeks before submitting his application—
cannot be squared with Mr. Overall’s affirmation.
The Committee panel had doubts about Overall’s candor.8 In addition to his failure
to accurately report his conviction for resisting arrest, Overall did not affirmatively disclose
recent legal proceedings. Specifically, a woman had filed an application for a peace order
against him,9 and Overall had filed a civil proceeding against the Maryland Motor Vehicle
Administration.10 The Committee also observed that Overall had seven traffic offenses in
Maryland between 2015 and 2016, including three incidents of driving on a suspended
license, and that he had continued driving despite knowing of the suspension because he
considered the suspension to be “wrongful.”
8
The Committee expressed concern that Overall had not disclosed that he had taken
and passed the New York Bar Examination. Overall had applied to take the New York Bar
Examination after he had applied to take the Maryland Bar Examination. Thus, he could
not have reported it on his initial Application. Overall told Ismail that he had taken the
New York Bar Examination during his character interview.
The Committee also observed that Overall failed to disclose that he had filed a
petition to be permitted to take the New York Bar Examination. Overall first mentioned
this petition during the Committee hearing, and stated that the court to whom he submitted
his petition in New York had not ruled on the petition, but he had been permitted to
proceed. Overall has not provided any other information about this petition.
9
Overall included this information on a supplement dated May 4, 2017, but that was
over a month after the application for a peace order was filed, and made the same day as
his Committee hearing.
10
We recognize that Overall disclosed this proceeding in his February 12, 2017
supplement.
12
The Committee unanimously concluded that Overall had not met his burden of
demonstrating that he possessed the required moral candor and fitness to practice law, and
recommended that he be denied admission to the Maryland Bar. Specifically:
The panel was concerned about Mr. Overall’s lack of
candor . . . as well as the fact of his suspension and subsequent
non-reinstatement by the Alabama Bar. Further, the panel was
troubled by his apparent rejection of personal responsibility,
including his assertions that various outcomes were through no
fault of his own. The panel was also concerned by his apparent
lack of concern for his clients who had suffered adverse
outcomes from the various matters that were the subject of the
Alabama Bar proceedings. The panel’s assessment was that
the candidate’s answers at the hearing were evasive,
contradictory and unsatisfactory.
As required by Md. Rule 19-203(b),11 the Board held a hearing on the record made
before the Committee. The Board considered: (1) the Alabama disciplinary proceedings;
(2) Overall’s lack of candor, including his failure to disclose recent proceedings to which
he was a party; and (3) whether Overall demonstrated a “cumulative pattern” that “suggests
a pattern of disrespect for the law, the Courts and a lack of candor.” The Board
unanimously found that Overall had not met his burden to demonstrate that he possessed
the character and fitness for admission to the Maryland Bar. As required by Md. Rule 19-
11
Md. Rule 19-203(b), in relevant part, provides that:
Hearing by the Board. If the Board concludes after review of
the Character 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. In its
discretion, the Board, may permit additional evidence to be
submitted. . . .
13
203(b), the Board offered Overall an opportunity to withdraw his application before it
submitted its report and recommendation to the Court of Appeals. Overall declined to
withdraw his application.
On September 11, 2017, the Board submitted its report and recommendation to this
Court. We initially and prematurely denied Overall’s application in an Order dated
September 22, 2017. Overall filed exceptions, requested a hearing on the matter, and
proposed several conditions for his admission to the Bar of Maryland. 12 The Board
submitted a response to Overall’s exceptions. Pursuant to Md. Rule 19-203(c),13 we held
oral argument on November 6, 2017.
STANDARD OF REVIEW
We analyze whether Overall “has met the burden of establishing that [he]
‘possesse[s] the [requisite] moral character to practice law in the State of Maryland.’” In
re Application of Brown, 449 Md. 669, 683 (2016) (quoting In re application of T. Z.–A.O.,
441 Md. 65, 73 (2014)). An applicant to the Bar of Maryland carries the burden of proving
“the applicant’s good moral character and fitness for the practice of law.” Md. Rule 19-
12
The Maryland Rules do not contemplate conditional admission for new
applicants.
13
Md. Rule 19-203(c)(1) provides:
If the Court, after reviewing the report of the Character
Committee, and any report of the Board, believes there may
be grounds to deny admission, the Court shall order the
applicant to appear for a hearing and show cause why the
application should not be denied.
14
203(d).14 We have explained that “[a]n applicant must possess good moral character for
admission to any Bar, denoted by ‘those qualities of truth-speaking, of a high sense of
honor, of granite discretion, of the strictest observance of fiduciary responsibility.’” In re
Application of Cramer, 427 Md. 612, 622 (2012) (quoting In re Application of Strzempek,
407 Md. 102, 112 (2008)). In determining whether a candidate should be admitted to the
Bar, we examine the applicant’s “present moral character” to consider “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.’” In re Application of Hyland, 339 Md. 521, 535 (1995)
(quoting In re Application of A.T., 286 Md. 507, 514 (1979)).
We base our evaluation of an applicant’s moral character on an independent review
of the testimony and evidence before the Committee and the Board. See Application of
Brown, 449 Md. at 684; In re Application of Stern, 403 Md. 615, 630 (2008). This Court,
however, accords great deference to the Board’s determination that an applicant lacks the
requisite moral character and its recommendation that an applicant be denied admission to
the Bar. See Application of Brown, 449 Md. at 684; Application of Stern, 403 Md. at 629.
14
Md. Rule 19-203(d) provides:
(d) 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 in the application or any relevant
question asked by a member of the Character Committee,
the Board, or this Court is sufficient cause for a finding that
the applicant has not met this burden.
15
DISCUSSION
“‘[A]bsolute candor is a requisite of admission to the Maryland Bar.’” In re
Application of Strzempek, 407 Md. 102, 112 (2008) (quoting Application of Stern, 403 Md.
at 634). Although we have recognized that there is no hard or fast test to determine whether
an applicant for admission to the Bar possesses good moral character, we have said that
“no moral character qualification for Bar membership is more important than truthfulness
and candor.” In re Application of Allan S., 282 Md. 683, 689 (1978). Throughout the
application process for his admission to the Maryland Bar, Overall has demonstrated a lack
of candor.
Lack of candor dooms an applicant’s chances for admission to the Bar. See
Application of Strzempek, 407 Md. at 104. In Strzempek, we considered whether an
applicant who failed to disclose a conviction for drunk driving should be admitted to the
Bar. Strzempek, who had been a member of the New York Bar for some time, submitted
his application in 2005. Id. at 105. In April 2006, while his application was pending, he
was convicted of driving while intoxicated and multiple related charges in Virginia. Id. at
106. The arrest occurred just two weeks before his character and fitness interview in
Maryland. Strzempek did not submit any information about his arrest and conviction until
nearly nine months later. Even after submitting documentation regarding the arrest, he did
not include any reference to his time spent in jail, a complete list of fines, or his suspended
sentence for driving while intoxicated. Id. at 107. We rejected the Board’s
recommendation to admit Strzempek because of these alarming omissions. Id. at 113.
Strzempek attempted to excuse this omission by claiming that he had waited to disclose his
16
conviction until he learned that he had passed the Bar Examination because he was
embarrassed by his behavior. Id. at 108. We found this explanation inadequate, and
emphasized that complete “disclosure on the Bar [A]pplication and immediate and full
supplementation after an incident warranting exposition is mandatory, not voluntary.”
Id. at 113 (emphasis added). An applicant does not have discretion to decide “whether to
disclose and under what conditions.” Id.
Failure to make full disclosures during character review is also evidence of lack of
candor. We denied admission to a Bar applicant who failed to fully disclose financial
information on his Bar Application. Application of Stern, 403 Md. at 633–35. In response
to the relevant questions on the application, Stern failed to disclose the existence of
numerous credit accounts, delinquent accounts, and judgments filed against him for failure
to keep these accounts current. Id. When the Committee and Board inquired about his
past due accounts and failure to disclose, Stern did not recognize that his omissions and
conduct were wrongful. Id. at 621–22. Stern’s failure to make the required financial
disclosures on his Bar Application was sufficient reason for us to deny his admission to the
Maryland Bar. Id. at 634–35.
On the other hand, full candor and evidence of rehabilitation can be a saving grace
for a candidate with a checkered past. In Application of Allan S., we considered the
character and fitness of an applicant who admitted to committing a petty theft after law
school. 282 Md. at 686–87. Allan admitted to stealing a tape measure from a department
store. He expressed remorse for his actions and admitted to the theft, even though his
shoplifting charge was ultimately dismissed. At the time of the theft, Allan, who lived on
17
a communal farm, felt that stealing the tape measure was a permissible means of protesting
“big institutional structures.” Id. at 687. The Board recommended denying admission, but
we ruled to admit Allan. After recognizing the “moral turpitude” of the theft offense, we
considered Allan’s candor in disclosing the incident and his admission of guilt despite the
fact that he was never convicted. Id. at 691. We concluded that Allan possessed the
requisite good moral character and ordered his admission because he was “most candid,”
remorseful, and acknowledged his misconduct. Id.
Unlike in Application of Allan S., Overall has demonstrated a consistent lack of
candor during the application process. He failed to disclose the extent of his disciplinary
history in Alabama when he initially filed his Bar Application. He did not supplement his
Application with the fact that he had been denied reinstatement a second time in Alabama.
Despite filing multiple supplements to his application, he has repeatedly mischaracterized
his disciplinary status. Overall has described his suspension in Alabama as
“administrative,” or a breach of an agreement by the Alabama State Bar. We also observe
that Overall’s supplements often contained belated disclosures. For example, Overall
disclosed the peace order against him in a supplement dated the same day as the Committee
hearing, and only addressed the matter after the Committee raised it at the hearing. He has
failed to provide any of the requested documents relating to the peace order. Overall also
made incomplete and delayed disclosures regarding his application to the Bar of New York,
and never complied with the Committee’s request to provide copies of his New York Bar
Application and related correspondence.
18
We agree with the Board that Overall’s disclosure of his conviction for resisting
arrest was substantially incomplete and reflects negatively on his candor in the application
process. Although Overall disclosed his conviction in District Court on his application, he
did not disclose that he had been convicted in a de novo jury trial, despite the fact that it
occurred before he submitted his application. Instead, he stated that the District Court
conviction was “pending reversal due to lack of jurisdiction.” This statement obfuscates
the true nature of his conviction. The references in his Addendum and Supplements to the
case numbers and his vague statement about an “unsuccessful appeal” are inadequate to
resolve his lack of candor.
We view Overall’s conduct as equally troubling as the conduct of the applicants in
Strzempek and Stern. Just as those applicants refused to disclose relevant information in
their initial application or subsequent supplements, Overall has repeatedly
mischaracterized his conduct or completely failed to make necessary disclosures. Unlike
the full candor demonstrated by the applicant in Allan S., Overall has not taken
responsibility for, or admitted to his repeated lack of candor or failure to disclose. During
proceedings before this Court, we inquired about the record before the Committee and the
Board. Overall attempted to excuse his lack of disclosure by accusing the Committee and
Board of making misrepresentations about what he had disclosed and when. Overall’s
equivocation regarding his lack of candor prevents us from concluding that he understands
the gravity of his omissions. Full and prompt disclosure of requested information on the
Bar Application is mandatory. See, e.g., Application of Strzempek, 407 Md. at 113.
19
Overall’s disciplinary history in Alabama, beyond his lack of candor, is relevant to
our decision to deny him admission. Alabama has suspended his license, and twice refused
to reinstate it. In a case involving the revocation of a Maryland law license, In re License
of Thompson, 363 Md. 469, 471 (2000), we considered whether Maryland improvidently
licensed an out-of-state attorney. Thompson, who successfully completed the Out-of-State
Attorney Examination, was disbarred in the District of Columbia after completing the
Maryland Examination but before he was sworn in. Id. at 471–72. Thompson had
disclosed that he was facing disciplinary proceedings and had been suspended, but failed
to provide further requested information regarding those proceedings, and did not disclose
that he had been disbarred. Id. at 472–73. In deciding to revoke his license because he
was ineligible for admission through the Out-of-State Attorney procedure, we also
observed that his conduct in the District of Columbia would subject him to sanctions in
Maryland, and arguably demonstrated that he lacked the requisite moral character to be
admitted in Maryland. Id. at 478–79.
The Alabama Bar sanctioned Overall for a litany of incidents involving professional
misconduct. Specifically, his law license was suspended after failing to appear—on
numerous occasions—for court dates on behalf of his clients. He has been held in contempt
on multiple occasions, including criminal contempt. He improperly filed court documents
and failed to follow Alabama procedure for issuing subpoenas. This misconduct would
violate the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) as well.15 His
15
Effective July 1, 2016, the Maryland Lawyers Rules of Professional Conduct were
renumbered and renamed the Maryland Attorneys’ Rules of Professional Conduct.
20
failure to appear at numerous hearings for his clients or make necessary filings would likely
violate, at a minimum, MARPC § 19-301.3 (Competence) and § 19-303.2 (Expediting
Litigation). See, e.g., Attorney Grievance Comm’n of Maryland v. Schuler, 454 Md. 200
(2017) (attorney disbarred following repeated failures to appear for client, visit clients, or
file necessary documents on client’s behalf); Attorney Grievance Comm’n of Maryland v.
Gray, 436 Md. 513 (2014) (attorney indefinitely suspended after continually delaying the
litigation of her client’s case). Overall’s misconduct in Alabama leads us to conclude that
his suspension in Alabama reflects poorly on his moral character and fitness to practice
law. Overall has acknowledged that he could have done some things differently, but he
fails to recognize that he has engaged in misconduct, or that his lapses could have harmed
his clients.
Overall raises two legal arguments as to why he should be admitted to practice in
Maryland. First, he asserts that our decision to initially deny admission was based on
“misrepresentations and omissions” from the Board. Second, he argues that the right to
work is a “basic human right.”16
16
Overall relies on Article 23 of the United Nations Universal Declaration of
Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/810 (Dec. 10, 1948), which provides:
(1) Everyone has the right to work, to free choice of employment, to just and
favorable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal
work.
(3) Everyone who works has the right to just and favorable remuneration
ensuring for himself and his family an existence worthy of human dignity,
and supplemented, if necessary, by other means of social protection.
21
We do not find that the Board’s report contains misrepresentations and omissions.
The record supports the Board’s findings.17 It is evident, upon review, that some of the
Committee’s findings were incorrect with regard to Overall’s supplemental disclosures, as
we acknowledged earlier.18 But the Board’s findings were not based on those matters. And
we agree with the unanimous conclusions of the Board and the Committee that Overall has
shown a lack of candor.
Constitutional and Other Claims by Overall
Overall relies on Bd. of Cosmetological Exam’rs of Jefferson Cty. v. Gibbons, 193
So. 116, 119 (Ala. 1940), for the proposition that the right to follow a common occupation
is “an inalienable right, one of the rights of the individual to life, liberty, and the pursuit of
happiness to conserve which government exists.” But the Alabama Supreme Court also
acknowledged that “every business is subject to reasonable regulation under the police
power,” and that the constitutionality of its licensing statutes was not in doubt. Id. In that
(4) Everyone has the right to form and join trade unions for the protection of
his interests.
The Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004), has
clarified that the United Nations Universal Declaration of Human rights “does not of its
own force impose obligations as a matter of international law.” The Court concluded that
the Declaration does not “establish the relevant and applicable rule of international law.”
Id. at 735. Courts may treat the Declaration as supporting, or persuasive authority, but it
has no binding value.
17
Although Overall takes a different perspective on his suspension in Alabama, he
does not deny that he has been suspended, and not reinstated.
18
See supra notes 8–10 and accompanying text.
22
case, the Alabama Supreme Court decided that an individual was not subject to the
licensing statute. Id. at 120. Overall has not alleged that our regulation scheme is
unreasonable, or that he is not required to obtain a law license to work in Maryland as a
lawyer.
As Overall asserts, practicing law is a fundamental activity protected by the
Privileges and Immunities Clause of Article IV, § 2 of the United States Constitution.19
See Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 283 (1985); Sheley v. Alaska
Bar Ass’n, 620 P.2d 640, 642–43 (Alaska 1980). The Privileges and Immunities Clause
generally protects the right of citizens who live in one state to work in another state without
discrimination. See Piper, 470 U.S. at 280. But Overall has not claimed that Maryland
has denied him his law license because he resides in a different state.
Overall relies on Truax v. Raich, 239 U.S. 33, 41 (1915), and argues that “the right
to work for a living in the common occupations of the community is of the very essence of
the personal freedom and opportunity that it was the purpose of the amendment to secure.”
In that case, the Supreme Court concluded that an Arizona statute that required companies
to employ no fewer than 80% of workers who were either qualified electors or native
United States citizens, violated the Fourteenth Amendment. Id. at 40–42. States may not
“deny to lawful inhabitants, because of their race or nationality, the ordinary means of
earning a livelihood.” Id. at 41. But Overall has not alleged that Maryland has denied him
19
Article IV, § 2, cl.1 of the United States Constitution provides: “The Citizens of
each State shall be entitled to all Privileges and Immunities of Citizens in the several
States.”
23
admission to the Bar based on his race, and the record does not demonstrate any
discriminatory behavior in his Committee or Board hearings.
Overall raises substantive due process claims.20 The Fourteenth Amendment
provides that:
All persons born or naturalized in the United States and subject
to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges and
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
U.S. Const. amend. XIV, § 1.21 The Supreme Court has explained that the “liberty”
component of the due process clause includes “the right of the individual . . . to engage in
any of the common occupations of life . . . .” Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
States may not interfere with this liberty interest “by legislative action which is arbitrary
or without reasonable relation to some purpose within the competency of the state to
effect.” Id. at 399–400. Thus, absent infringement of a fundamental right or
constitutionally protected property right, an individual must demonstrate that legislative
20
Overall relies on several substantive economic due process cases such as New
State Ice Co. v. Liebmann, 285 U.S. 262 (1932), and Allgeyer v. Louisiana, 165 U.S. 578
(1897). The doctrine of substantive economic due process has been abandoned. See United
States v. Carolene Prods. Co., 304 U.S. 144 (1938); West Coast Hotel Co. v. Parrish, 300
U.S. 379 (1937); Nebbia v. New York, 291 U.S. 502 (1934). As such, we do not find these
arguments persuasive.
21
Overall does not raise claims under the Maryland Declaration of Rights, but we
acknowledge that Article 24 of the Maryland Declaration of Rights expresses the same
protections as the Due Process Clause of the Fourteenth Amendment. See City of
Frostburg v. Jenkins, 215 Md. 9, 15 (1957).
24
action, such as establishing licensing standards for an occupation, has no rational basis.
See Comprehensive Accounting Serv. Co. v. Md. State Bd. of Pub. Accountancy, 284 Md.
474, 483–84 (1979). The individual challenging the statute must prove “that it does not
bear a real and substantial relationship to the governmental object sought to be attained.”
Id.
It is undisputed that states have a “compelling interest in the practice of professions
within their boundaries, and that as part of their power to protect the public health, safety,
and other valid interests they have broad power to establish standards for licensing
practitioners and regulating the practice of professions.” Goldfarb v. Virginia State Bar,
421 U.S. 773, 792 (1975). “The interest of the States in regulating lawyers is especially
great since lawyers are essential to the primary government function of administering
justice and have historically been ‘officers of the courts.’” Id. Maryland has a significant
interest in ensuring that its lawyers display good moral character and candor.
“A State cannot exclude a person from the practice of law . . . in a manner or for
reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth
Amendment.” Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 238–39 (1957). States are
free to set “high standards of qualification, such as good moral character or proficiency in
its law, before it admits an applicant to the bar, but any qualification must have a rational
connection with the applicant’s fitness or capacity to practice law.” Id. at 239 (emphasis
added). Even if the state’s standards are appropriate, a candidate may not be denied
admission unless there is a basis for finding that he has not met the state’s standards, or if
25
the state action is “invidiously discriminatory.” Id. Simply put, “a person cannot be
prevented from practicing [law] except for valid reasons.” Id. at 239 n.5.
In Schware, the Supreme Court considered whether there was a basis to conclude
that Schware lacked the good moral character to be admitted to the New Mexico Bar. The
New Mexico Board of Bar Examiners denied Schware’s application based on: (1) his use
of aliases approximately 20 years earlier to avoid anti-Semitic discrimination; (2) several
arrests without trial or convictions on suspected violations of California statutes prohibiting
“criminal syndicalism” and the Neutrality Act of 1917; (3) and his membership in the
Communist Party from 1932 to 1940. Id. at 240–44. The Court rejected New Mexico’s
rationale for excluding Schware, pointing out that this conduct had occurred a substantial
time earlier. Schware, the Court explained, had made a “forceful showing of good moral
character” and overcome any “substantial doubts about his present good moral character.”
Id. at 246. In addition to presenting substantial evidence of his character and conduct,
Schware had been entirely candid about his history consistent with the requirements of
New Mexico Bar Admissions, and with the dean of his law school. Id. at 235 n.2, 240.
The Court concluded that New Mexico’s decision to deny admission was not based on any
evidence that rationally justified a conclusion that Schware lacked the moral fitness to
practice law. Id. at 246–47.
During the application process, Overall did not make a “forceful showing of good
moral character.” Id. at 246. Overall submitted letters written by attorneys and judges in
Alabama recommending his reinstatement in Alabama both in his Addendum and to this
Court. But those letters are several years old. Thus they do not provide evidence of his
26
current moral character and fitness. Unlike the applicant in Schware, whose misconduct
occurred long before his application to the Bar in New Mexico, Overall’s misconduct has
occurred recently. And whereas Schware had been candid about his history, Overall has
demonstrated a lack of candor throughout the application process. We have held that
repeated misrepresentations in the application for admission to the Bar reflects poorly on
the applicant’s moral character. See, e.g., Application of Cramer, 427 Md. at 624 (denying
admission to an applicant who displayed a lack of candor and truthfulness by failing to
disclose material facts on his application).
CONCLUSION
The decisions of the Committee, Board, and this Court are based on substantial
evidence that Overall lacks the moral fitness to practice law. Maryland has afforded
Overall ample opportunity to demonstrate his fitness. His repeated omissions,
mischaracterizations, and continued failure to recognize the import of the same leads us to
conclude that Overall should not be a lawyer in Maryland. Upon consideration of the entire
record before the Committee and the Board, we hold that Overall has failed to satisfy his
burden of demonstrating that he has the good moral character necessary for the practice of
law and admission to the Bar of Maryland. We shall not order his admission.
IT IS SO ORDERED.
27