[¶ 1] The Board of Bar Examiners appeals from the judgment of a single justice of the Supreme Judicial Court (Alexander, J.) concluding that applicant F. Lee Bailey presently possesses the requisite good character and fitness required by M. Bar R. 7.3(j)(5) to be admitted to practice law in Maine.
[¶ 2] The Board advances several reasons in support of its position that the single justice erred in authorizing Bailey's admission to the Maine bar.
[¶ 3] In 1994, Bailey, who had practiced primarily as a criminal-defense attorney for many years, began defending Claude Duboc against charges of drug smuggling and money laundering and related claims for asset forfeiture in the United States District Court for the Northern District of Florida. Bailey was disbarred in Florida in 2001 due to misconduct in connection with his representation of Duboc, and was reciprocally disbarred in the state and federal courts of Massachusetts in 2003 and 2006, respectively. The Florida Supreme Court, in its decision ordering Bailey's disbarment, set out the following factual background based upon the findings of Circuit Judge Cynthia Ellis, who acted as the referee in the disbarment proceedings:
Florida Bar v. Bailey, 803 So.2d 683, 685-86 (Fla.2001) (per curiam) (quotation marks omitted) (alterations omitted).
[¶ 4] During the course of Bailey's management of Duboc's assets, the market value of the Biochem stock
[¶ 5] By late 1995, Duboc had become dissatisfied with Bailey's representation and filed a motion to substitute new counsel for Bailey. Five days before the scheduled hearing, Bailey sent a letter to Judge Paul without copying the prosecutors, Duboc, or Duboc's new attorneys. Bailey's letter referred to Duboc, in quotes, as a "multimillionaire druggie" and alleged, among other things, that Duboc's new attorneys had a conflict of interest and were giving Duboc harmful advice. At the end of the letter, Bailey acknowledged its ex parte nature: "I have sent no copies of this letter to anyone, since I believe its distribution is within Your Honor's sound discretion."
[¶ 6] Following a hearing, Judge Paul entered an order on January 12, 1996, removing Bailey as Duboc's counsel. The order also froze all of Duboc's assets held by Bailey and required Bailey to submit a complete accounting of Duboc's money and property that he held in trust. Despite his knowledge of the January 12 order, Bailey thereafter spent over $300,000 of the Biochem proceeds for his own purposes. Judge Paul issued a second order on January 25, 1996, mandating that Bailey surrender all of the shares of the Biochem stock or any replacement assets, and prepare a full accounting of the assets he received from Duboc, including any disbursements he made from those assets. Bailey then notified the Swiss government that the Biochem shares and proceeds in his Swiss bank account were the fruits of drug trafficking, which resulted in the Swiss authorities freezing the account. As a result, Bailey did not surrender the stock or proceeds as he was required to do. Judge Paul subsequently scheduled a hearing to determine if Bailey should be held in contempt.
[¶ 7] At the contempt hearing held on February 2, 1996, Bailey testified under oath that he did not physically see the January 12 and January 25 orders until that very morning. Judge Paul held Bailey in contempt for violation of the orders, and ordered his incarceration until he could purge himself of contempt by producing the requested accountings and the stock, and repaying to the court the amount he had withdrawn. When Judge Paul determined that he had substantially complied with the court's contempt order, Bailey was released from incarceration after forty-four days.
[¶ 8] Ultimately, Judge Paul approved $1.2 million of the approximately $1.6 million in expenditures Bailey claimed to have made to manage Duboc's assets. Because Bailey had already spent more than the approved expenses, he was ordered to pay an additional $423,737 to the court. The court also ordered Bailey to return the sum that he had withdrawn from the Swiss account and spent for personal purposes. On appeal, the United States Court of Appeals for the Eleventh Circuit rejected Bailey's contention that Judge Paul was biased against him and should have been recused, and affirmed the court's allowance of expenses with one minor exception.
[¶ 9] In July 2000, after a five-day hearing on the Florida Bar's petition for Bailey's disbarment, Judge Ellis found that Bailey had committed various ethical violations, including misappropriation of client assets and commingling them with personal assets, ex parte communication, self-dealing, conflict of interest, and false testimony under oath. Judge Ellis rejected Bailey's argument that because the Biochem stock was transferred to him in "fee simple absolute," he was entitled to treat the stock and its appreciation as his own. In arriving at a proposed sanction, Judge Ellis noted that Bailey was sixty-seven years old at the time of the misconduct and had been practicing law for many years. She applied the aggravating factors of substantial experience in the practice of law, selfish motive, pattern of misconduct, multiple offenses, and refusal to acknowledge the wrongful nature of his misconduct. Emphasizing the egregiousness of Bailey's ethical violations and the aggravating factors, Judge Ellis recommended that Bailey be permanently disbarred.
[¶ 10] On appeal, the Florida Supreme Court upheld all of Judge Ellis's findings and conclusions regarding the six counts of ethical violations, noting that Bailey had "committed some of the most egregious rules violations possible." Florida Bar, 803 So.2d at 690, 694. The court ordered Bailey disbarred with eligibility to apply for readmission after a period of five years. Id. at 695. Bailey appealed to the United States Supreme Court, which denied certiorari. Bailey v. Florida Bar, 535 U.S. 1056, 122 S.Ct. 1916, 152 L.Ed.2d 825 (2002). Subsequently, Bailey was reciprocally disbarred in both the state and federal courts of Massachusetts.
[¶ 11] After Bailey's disbarment in Florida, the Biochem stock continued to be a subject of dispute. In 2002, the United States Court of Federal Claims rejected a claim Bailey brought against the United States in which he contended that the government had breached an implied-in-fact contract to transfer the stock to him in fee simple absolute. Bailey v. United States, 54 Fed.Cl. 459, 485-87 (2002), aff'd, Bailey v. United States, 94 Fed.Appx. 828 (Fed. Cir.2004). In January 2013, the United States Tax Court determined that Bailey owed taxes and penalties in the amount of $1.9 million, not including statutory interest, resulting in part from his failure to report as income a portion of the Biochem proceeds that he had treated as his own. Bailey v. Comm'r, No. 3080-08 (T.C. Jan. 11, 2013); Bailey v. Comm'r, No. 3081-08 (T.C. Jan. 11, 2013); Bailey v. Comm'r, 103 T.C.M. (CCH) 1499, 2012 WL 1082928, at *22 (T.C. Apr. 2, 2012). In July 2013, the Internal Revenue Service (IRS) filed tax liens against Bailey in the approximate sum of $4.5 million, which included statutory
[¶ 12] In February 2012, ten years after his disbarment in Florida, Bailey applied for admission to practice law in Maine and passed the Maine bar exam. In November 2012, following a testimonial hearing, the Board of Bar Examiners concluded in a five-to-four decision that Bailey had failed to meet his burden of proving, by clear and convincing evidence, that he presently possesses the requisite good character and fitness for admission to the Maine bar. See M. Bar R. 7.3(j)(5). The Board found, among other things, that Bailey did not recognize the wrongfulness and seriousness of his prior misconduct that led to his disbarment, that he continued to dispute the Florida Supreme Court's findings regarding his misconduct, and that he continued to challenge the legitimacy of the judicial process that resulted in his disbarment.
[¶ 13] Bailey appealed the Board's decision pursuant to M. Bar Admission R. 9(d)(6), and the single justice held a de novo hearing on March 6 and 7, 2013. In April 2013, the single justice entered a judgment concluding that Bailey had met his burden of proving the requisite good character and fitness in all but one respect — his large outstanding tax obligation. The single justice specifically found that Bailey recognizes the wrongfulness and seriousness of the misconduct that led to his disbarment but denied Bailey's petition for a certificate of good character and fitness based on the tax liability alone. The single justice invited the parties to submit motions for reconsideration to address this issue, explaining:
[¶ 14] Bailey subsequently filed a motion for reconsideration. In June 2013, after a hearing, the single justice issued a judgment finding that Bailey, by actively litigating and seeking to resolve the tax debt, "is making a genuine effort to meet
[¶ 15] The Board filed a motion for further findings and for reconsideration, arguing that the single justice failed to consider evidence bearing negatively on Bailey's character and fitness. The single justice denied the Board's motion, and this appeal followed.
[¶ 16] Maine Bar Rule 7.3(j) governs the admission of attorneys who have been disbarred. Pursuant to Maine Bar Rule 7.3(j)(5), Bailey bore the burden of presenting "clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law" in Maine, as well as evidence establishing that "it is likely that [his admission] will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest." See also In re Williams, 2010 ME 121, ¶ 6, 8 A.3d 666 (citing M. Bar R. 7.3(j)(5)); In re Hughes, 594 A.2d 1098, 1100-01 (Me.1991).
[¶ 17] The Board asserts that the evidentiary record shows that the single justice's finding that Bailey recognizes the wrongfulness and seriousness of his misconduct is clearly erroneous, and that, as a matter of law, Bailey failed to prove this factor because he only admitted to some, but not all, of the misconduct found by the Florida Supreme Court. We interpret the meaning of Rule 7.3(j)(5) de novo as a matter of law and review for clear error the single justice's findings of fact. Warren, 2011 ME 124, ¶ 25, 34 A.3d 1103. When reviewing on appeal findings of fact that must be proved by clear and convincing evidence, we determine "whether the factfinder could reasonably have been persuaded that the required factual finding
[¶ 18] We begin by examining the meaning of the phrase "recognizes the wrongfulness and seriousness of the misconduct" as used in Rule 7.3(j)(5)(C), considering (1) the meaning of the term "recognize" as employed in the Rule, and (2) whether, as the Board contends, the Rule required Bailey to demonstrate that he is fully repentant and unambiguously accepts the wrongfulness and seriousness of all of his misconduct.
[¶ 19] The underlying purpose of Rule 7.3(j)(5)(C)'s requirement that a previously disbarred applicant "recognizes the wrongfulness and seriousness of the misconduct" is to ensure that the applicant's readmission "will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest." M. Bar R. 7.3(j)(5). Because the purpose of the Rule centers on the protection of the public, its standard is directed at whether the disbarred applicant has been sufficiently rehabilitated to be trusted with the responsibilities of an attorney. See In re Wigoda, 77 Ill.2d 154, 32 Ill.Dec. 341, 395 N.E.2d 571, 574 (1979) ("Rehabilitation, the most important consideration in reinstatement proceedings, is a matter of one's return to a beneficial, constructive and trustworthy role." (quotation marks omitted)). Consistent with Rule 7.3(j)(5)'s purpose of protecting the public, we construe the term "recognize" to mean that the applicant must demonstrate that he or she (1) sincerely believes that the prior misconduct, as ultimately determined by the tribunal that imposed the discipline, was wrong and serious, and (2) is capable of identifying similar conduct as wrongful in the future if he or she were to engage in the active practice of law.
[¶ 20] Having construed the term "recognize," we turn to the Board's argument that Rule 7.3(j)(5)(C) requires proof of nothing less than Bailey's unambiguous acceptance of all findings of misconduct that the Florida Supreme Court found. We find this contention unpersuasive.
[¶ 21] Neither the language of the rule nor its purpose requires that an applicant demonstrate his complete and unambiguous acceptance of all of the findings of wrongdoing in order to establish his good character and fitness. See M.Bar R. 7.3(j)(5); see also In re Williams, 2010 ME 121, ¶ 10, 8 A.3d 666 (finding that an applicant failed to recognize the wrongfulness and seriousness of his misconduct because he "ignore[d] or minimize[d] the actual misconduct that led to his disbarment"). An applicant's good faith and reasoned dispute with one or more of a tribunal's findings that formed the basis of his disbarment does not preclude the possibility that the applicant sincerely believes that the misconduct, as ultimately determined by the tribunal, was wrong and serious. An applicant could, in good faith, dispute one or more of a tribunal's findings while nonetheless demonstrating respect for the process that was employed and acceptance of the tribunal's conclusions.
[¶ 23] Accordingly, that Bailey does not unambiguously accept all of the findings and conclusions of the Florida Supreme Court is not conclusive as to whether he sincerely believes that his misconduct was wrong and serious and whether he is capable of identifying similar conduct as such in the future as a practicing attorney. Common sense dictates, however, that the nature and extent of his failure to be fully repentant should be carefully considered when determining his fitness to practice law. See, e.g., In re Walgren, 708 P.2d at 384-85 (contrasting an applicant who maintained that he was wrongly convicted but who nonetheless "accepts the verdict as the law" and "accepts and respects the system which found him guilty of his acts" with one who blamed his misconduct on "bad judgment"). An applicant's attempt to minimize the wrongfulness and seriousness of his or her misconduct, as found by the presiding tribunal, casts doubt on whether the applicant believes the misconduct was wrong or serious. See In re Williams, 2010 ME 121, ¶ 10, 8 A.3d 666 (finding that an applicant failed to recognize the wrongfulness and seriousness of his misconduct because he "ignore[d] or minimize[d] the actual misconduct that led to his disbarment"); see also In re Sabo, 49 A.3d at 1225 ("If a petitioner does not acknowledge the seriousness of his or her misconduct, it is difficult to be confident that similar misconduct will not occur in the future." (quotation marks omitted)); In re Silva, 29 A.3d 924, 943 (D.C.2011) (finding that the applicant's acceptance of the seriousness of his misconduct "rings hollow" in part because "that acknowledgement is tempered by efforts to minimize the harm"); In re Holker, 765 N.W.2d 633, 638 (Minn.2009) (finding that an attorney did not demonstrate sufficient moral change when he "minimized several aspects of his misconduct, emphasizing that this was only one case out of thousands").
[¶ 24] We conclude, contrary to the Board's position, that the fact that Bailey is not fully repentant and does not unambiguously admit to all of the misconduct for which he was disbarred does not, standing alone, preclude a finding that he has satisfied Rule 7.3(j)(5)(C)'s requirement.
[¶ 25] To determine whether an applicant recognizes the wrongfulness and seriousness
Florida Bar, 803 So.2d at 694 (quotation marks omitted) (alteration omitted).
[¶ 26] The single justice concluded that Bailey had established that he recognizes the wrongfulness and seriousness of the above misconduct, finding:
In reviewing this determination, we defer to the single justice's credibility determinations. See Dyer v. Superintendent of Ins., 2013 ME 61, ¶ 12, 69 A.3d 416 ("No principle of appellate review is better established than the principle that credibility determinations are left to the sound judgment of the trier of fact." (quotation marks omitted)). We further infer that the single justice would have found all additional facts necessary to support the judgment if those inferred findings are supported by the evidence in the record.
[¶ 27] We consider together the first two counts of ethical violations relating to Bailey's commingling of client assets
[¶ 28] Regarding Count II, the Florida Supreme Court adopted Judge Ellis's finding that Bailey commingled and misappropriated over $3 million of the proceeds from Duboc's Biochem shares, and rejected Bailey's arguments that the stock was transferred to him in fee simple absolute and that he properly treated it as his own property.
[¶ 29] Bailey admitted to commingling "on one occasion" when he was questioned before the Board about the Biochem stock.
[¶ 30] With regard to the Japanese stock, because Bailey had the burden of production on this issue and there is no evidence in the record from which the court could have found that Bailey recognizes the wrongfulness and seriousness of having commingled the proceeds from Duboc's Japanese stock, we will not infer that the court found that Bailey recognizes the wrongfulness and seriousness of that transgression.
[¶ 31] Likewise, the evidence in the record does not support the conclusion that it is highly probable that Bailey recognizes the wrongfulness and seriousness of having commingled the proceeds from Duboc's Biochem stock, as required by the clear and convincing evidence burden of proof. As the Florida Supreme Court noted, "one of the most solemn obligations that separate lawyers from any other professionals relates to the safeguarding and segregation of a client's property." Florida Bar, 803 So.2d at 693. By commingling client assets, Bailey was "guilty of the most serious and basic trust account violations." Id. at 691. While Bailey's testimony before the Board that he "did on one occasion commingle" acknowledged the fact that he committed the misconduct, he offered no other testimony that sheds light on whether he believes that this "most serious and basic trust account violation" was indeed seriously wrong. On this record, we conclude that the fact-finder could not reasonably have been persuaded that the required factual finding — that Bailey recognizes the wrongfulness and seriousness of having commingled the proceeds from Duboc's Biochem stock — was proved to be highly probable, as required by the clear and convincing evidence standard. See Taylor, 481 A.2d at 153.
[¶ 32] At the hearing before the single justice, Bailey admitted to spending approximately $3 million of the Biochem proceeds for his own use, and testified that if the appreciation in the value of the Biochem stock ever belonged to him, as he claimed, "I lost it through my own negligence and perhaps substandard conduct." Bailey minimized the seriousness of this misconduct, however, by explaining that he spent no more than the appreciated value of the stock, which had risen from $5.9 million at the time of the original transfer to over $10 million by January 1996.
[¶ 33] Consistent with his continued claim that the stock belonged to him in fee
[¶ 34] Lastly, when asked about the mistakes he made, Bailey stated that his mistake was his failure to recognize that the handling of the stock was "riddled with conflicts" and that "the United States Attorney didn't have the authority to make that deal as was ultimately ruled in the Court of Claims."
[¶ 35] In short, Bailey continues to dispute that he misappropriated over $3 million of his client's property and the key predicate facts supporting that finding. The evidence in the record does not support the conclusion that it is highly probable that Bailey recognizes the wrongfulness and seriousness of his misappropriation of the Biochem stock proceeds, as required by the clear and convincing evidence burden of proof.
[¶ 36] The Florida Supreme Court adopted Judge Ellis's finding that Bailey willfully violated Judge Paul's two orders issued in January 1996: first, by spending over $300,000 from the Biochem proceeds he held in trust despite Judge Paul's January 12 order freezing the funds; and second, by failing to surrender the Biochem shares and stock proceeds to the court despite the January 25 order requiring him to do so.
[¶ 37] At the hearing before the single justice, Bailey admitted to spending an additional $300,000 for personal purposes after the January 12 order was issued. However, he maintained that his violation of the order was unintentional because he mistakenly assumed that the January 25 order superseded the January 12 order.
[¶ 38] In addition, although Bailey admitted to the single justice that he violated the January 25 order, he continued to disavow responsibility for having arranged for the notice to the Swiss government that
[¶ 39] Based on Bailey's testimony, it is not possible to conclude that it is highly probable that he recognizes the wrongfulness and seriousness of his violation of Judge Paul's orders, as required by the clear and convincing evidence burden of proof.
[¶ 40] The Florida Supreme Court adopted Judge Ellis's finding that Bailey testified falsely before Judge Paul, and again in the Florida bar hearing, that he did not see either the January 12 or the January 25 order until the morning of the civil contempt hearing held on February 2, 1996.
[¶ 41] In his testimony before the single justice, Bailey again asserted that he did not see or read the January 12 and January 25 orders until the morning of the contempt hearing.
[¶ 42] In sum, Bailey continued to dispute that he testified falsely before Judge Paul and Judge Ellis as the Florida Supreme Court had found. Based on Bailey's testimony, it is not possible to conclude that it is highly probable that Bailey recognizes the wrongfulness and seriousness of his false testimony, as required by the clear and convincing evidence burden of proof.
[¶ 43] The Florida Supreme Court adopted Judge Ellis's finding that Bailey engaged in two instances of self-dealing in his representation of Duboc.
[¶ 44] On the first point, as noted above, although Bailey explained to the single justice that he failed to recognize that his acceptance of the Biochem
[¶ 45] On the second point, Bailey contended before the single justice that Judge Ellis had erred in finding that he had procrastinated in selling Duboc's estates to prolong his personal use of the properties; rather, he explained that he delayed selling the properties in order to garner a better price for them.
[¶ 46] Bailey's present view of his actions minimizes the wrongfulness and seriousness of his self-dealing as determined in the Florida Bar proceeding. Based on Bailey's testimony, it is not possible to conclude that it is highly probable that he recognizes the wrongfulness and seriousness of this misconduct, as required by the clear and convincing evidence burden of proof.
[¶ 47] The Florida Supreme Court adopted Judge Ellis's finding that Bailey sent an ex parte letter to Judge Paul in which he stated that Duboc had pleaded guilty because he had no defense due to the strength of the case, referred to Duboc as a "multimillionaire druggie," alleged that Duboc, by consulting with other attorneys, was no longer acting in a spirit of cooperation, and disparaged Duboc's new counsel. Florida Bar, 803 So.2d at 689, 690.
[¶ 48] At the hearing before the single justice, Bailey admitted to sending the ex parte letter to Judge Paul. He admitted that his ex parte communication constituted "unethical conduct" and a "knee-jerk reaction," and expressed regret in writing the letter without having consulted another attorney.
[¶ 49] Before the single justice, Bailey also denied having disparaged Duboc in his letter to Judge Paul, testifying that he had put the phrase "multimillionaire druggie" in quotes to denote that he only repeated what other attorneys had called Duboc.
[¶ 50] Although different conclusions may be drawn from Bailey's testimony regarding the letter, the single justice's finding that Bailey recognized the wrongfulness and seriousness of having sent an ex parte letter to Judge Paul is supported by competent evidence in the record. The evidence, however, does not support the conclusion that it is highly probable that Bailey recognizes the wrongfulness and seriousness of his self-dealing and disclosure of confidential client information, as required by the clear and convincing evidence burden of proof.
[¶ 51] Bailey testified that although he believed, in retrospect, that the Florida Supreme Court had "some grounds ... that warranted disbarment," he believed that his disbarment was "kind of harsh."
[¶ 52] Before the single justice, multiple witnesses testified to Bailey's love of the law, the devastating effect that disbarment has had on him, and his regret and reformation since disbarment. For example, witnesses testified that Bailey "had lost something he deeply loved and was going through a lot of pain"; that the Duboc case was Bailey's "one regret" and he was "very sorry for what had happened"; that since his disbarment Bailey has become "a new man," "far more humble," and "much more measured"; that Bailey is actively involved in business and community activities in Maine and elsewhere; and that it was clear that Bailey has recognized his mistakes in the Duboc matter and those mistakes would not be repeated. In particular, Judge Kenneth Fishman of the Superior Court of Massachusetts testified that Bailey's conduct in his representation of Duboc was an "aberration":
[¶ 53] Witnesses further testified as to the personal difficulty that Bailey faced during the period leading to his disbarment — Bailey was handling too many high-profile cases at once and was constantly traveling; his wife had fallen ill in 1998 and passed away in 1999; and her death caused him great personal suffering.
[¶ 55] The clear and convincing standard is applied where "a higher than ordinary degree of certitude" is required to achieve the applicable public policy. Taylor v. Comm'r of Mental Health & Mental Retardation, 481 A.2d 139, 149 (Me.1984). We apply this heightened burden of proof in deciding whether to readmit previously disbarred applicants because "we are required specifically to determine that [such] reinstatement will not be detrimental to the public interest." In re Hughes, 594 A.2d 1098, 1101 (Me.1991). Further, "the policies that motivated the imposition of the clear and convincing evidence standard apply with equal force at both the factfinding and appellate stages." Taylor, 481 A.2d at 153 (quotation marks omitted).
[¶ 56] Viewing Bailey's actions as identified in the six counts of misconduct, we conclude that Bailey met his burden of proof by clear and convincing evidence only with respect to the question of whether he recognizes the wrongfulness and seriousness of having sent an ex parte communication to Judge Paul (Count VII). As to the remaining misconduct, the evidence in the record does not support the conclusion that it is highly probable that Bailey recognizes the wrongfulness and seriousness of commingling the Japanese stock (Count I), commingling and misappropriating the Biochem stock (Count II), violating two federal court orders (Count III), false testimony (Count IV), self-dealing in his treatment of the Biochem stock (Count V), and self-dealing and disclosure of confidential client information (Count VII). By continuing to question many of the findings and conclusions reached by the Florida Supreme Court, and by suggesting that Judge Ellis and the other judges who presided in his cases were biased and that the Florida proceedings were the product of a conspiracy to deprive him of his constitutional rights, Bailey minimizes the wrongfulness and seriousness of the misconduct for which he was disbarred.
[¶ 57] As previously discussed, an applicant is not required to demonstrate that he or she completely and unambiguously accepts all of the findings of misconduct to satisfy the requirement of M. Bar R. 7.3(j)(5)(C). Here, however, Bailey failed to demonstrate that he is sufficiently rehabilitated by proving that it is highly probable that he recognizes the wrongfulness and seriousness of most of the misconduct he committed. Considered as a whole, the record evidence was insufficient to prove, by clear and convincing evidence, that Bailey recognizes the wrongfulness and seriousness of his misconduct. Accordingly, the single justice erred by reaching the opposite conclusion and, consequently, by ultimately concluding that Bailey's "reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or the public interest." See M. Bar R. 7.3(j)(5).
The entry is:
Judgment vacated. Remanded for entry of a judgment affirming the order of the Board of Bar Examiners.
SAUFLEY, C.J., and CLIFFORD, J., dissenting.
[¶ 58] Because the Court has acted outside its appellate function in vacating the
[¶ 59] We have no quarrel with the Court's well-crafted analysis of the applicant's burden of proof and the Court's standard of review on appeal. As the Court properly observed, it was Bailey's "burden to present `clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State,'" and to establish that "`reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.'" In re Williams, 2010 ME 121, ¶ 6, 8 A.3d 666 (quoting M. Bar R. 7.3(j)(5)).
[¶ 60] The Court also properly analyzed the law and determined that complete and unambiguous acceptance of previous wrongdoing is not a prerequisite for a finding of good character and fitness pursuant to Maine Bar Rule 7.3(j)(5). Court's Opinion ¶ 21. We agree with the Court that common sense requires an analysis of "the nature and extent of [an applicant's] failure to be fully repentant." Court's Opinion ¶ 23.
[¶ 61] Despite the Court's recognition of the standards applicable to its appellate review, however, it fails to apply those standards, instead making credibility determinations of its own and choosing to give weight to different evidence than was credited by the single justice. The Court goes astray from its own pronouncements when it decides which facts it believes from among many facts presented at a full hearing.
[¶ 62] Specifically, the Court today concludes that the evidence presented could
[¶ 63] Credibility determinations are not, however, properly undertaken by an appellate court. "[T]he fact finder who hears and sees the witnesses, who observes their hesitations, inflections and emphases, is in a more favorable position to judge their credibility than the appellate court which only reads the printed testimony." Michaud v. Charles R. Steeves & Sons, Inc., 286 A.2d 336, 341 (Me.1972) (quotation marks omitted). A witness's credibility is "for the presiding justice to weigh." Bd. of Overseers of the Bar v. Dineen, 481 A.2d 499, 502 (Me.1984). "Fact-finders are not required to believe or disbelieve witnesses and are called upon to determine the significance of the evidence and decide what inferences, if any, to draw from that evidence." Huber v. Williams, 2005 ME 40, ¶ 15, 869 A.2d 737. Furthermore, "the fact-finder may believe some, all, or none of a witness's testimony," In re Cyr, 2005 ME 61, ¶ 16, 873 A.2d 355, and "has the prerogative to selectively accept or reject testimony and to combine such testimony in any way," Jenkins, Inc. v. Walsh Bros., Inc., 2001 ME 98, ¶ 22, 776 A.2d 1229 (quotation marks omitted).
[¶ 64] Given the testimony of Bailey and other witnesses about Bailey's awareness and acknowledgement of his wrongdoing, we would conclude that the evidence, and any reasonable inferences that may be drawn from that evidence, could reasonably have persuaded the single justice that it was highly probable that Bailey "recognize[d] the wrongfulness and seriousness of the misconduct" that led to his disbarment. M. Bar R. 7.3(j)(5)(C).
[¶ 65] Specifically, as the Court recognizes in its opinion, Bailey conceded in his testimony that there were some grounds for disbarment because he did engage in some improper conduct. He testified that he made a mistake in accepting stocks instead of an agreed $3 million fee in the Duboc case: "[T]he acceptance of the stock was riddled with conflicts I really didn't see at the outset." See Court's Opinion ¶ 34 & n. 16. He also testified that, when he sent the ex parte letter to Judge Paul concerning Duboc, he acted improperly: "I would certainly agree now that it was unethical conduct, improper, unwise, and a knee-jerk reaction at a time when I was totally focused on a different case. And I make no excuses for having that transgression." See Court's Opinion ¶ 48 & n. 28.
[¶ 66] He took responsibility for having failed to read the Florida court's January 12, 1996, order prohibiting any sale of stock as soon as the order arrived at his office: "I must hasten to add that certainly was substandard performance on my part. I should have made it my business to read the letter and not assume anything, to read the order. And I just didn't do that." See Court's Opinion ¶ 41 n. 21. He also accepted responsibility for selling stock after receiving a second order on January 25 without getting clarification about whether
[¶ 67] Bailey's colleagues also testified about their observations of his acknowledgment of the seriousness and wrongfulness of his misconduct since the disbarment. Bailey's former law partner, now a Superior Court Justice in Massachusetts, described Bailey as having been arrogant before his disbarment but more "humble" and "careful" since. He testified that Bailey realizes that he had lapses in judgment and made serious mistakes that he would never repeat. A Maine attorney who has befriended Bailey in Maine since the disbarment also testified that he is "humble." Another Maine lawyer testified that Bailey had expressed to him that he regretted and was sorry for what happened in the Duboc case. A lawyer and former Massachusetts State Senator who has known Bailey since before the disbarment testified that Bailey had "without a doubt" learned from the disbarment. A private investigator and former probation officer who worked with Bailey extensively before the disbarment and remains a friend of his testified that Bailey is remorseful and accepts his responsibility for what has happened.
[¶ 68] Although, given Bailey's testimony explaining or rationalizing his past behavior, the Justices in the majority might not have found as the single justice did if any of them had sat as the trial justice, the function of an appellate court is not to re-weigh the evidence and substitute its findings for those of the fact-finder. Rather, as an appellate court reviewing the findings in this matter, the Court must determine on appeal whether there is evidence in the record from which the single justice could reasonably have found that it was highly probable that Bailey "recognize[d] the wrongfulness and seriousness of [his] misconduct." M. Bar R. 7.3(j)(5)(C). The evidence presented here can support a finding that Bailey recognized the wrongfulness and seriousness of his conduct. We would therefore affirm the single justice's finding that Bailey demonstrated his recognition of the wrongfulness and seriousness of his misconduct.
[¶ 69] Because we would affirm the finding on the recognition of wrongfulness, it would be necessary to review the single justice's other findings of fact.
[¶ 70] There is ample evidence in the record to demonstrate that Bailey has complied with the terms of all prior disciplinary orders.
[¶ 71] The only remaining factual issue that is relevant here but not addressed by the factors set forth in the rule is whether Bailey's substantial tax debt creates an unacceptable risk that Bailey's admission would "be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest." M. Bar R. 7.3(j)(5). Following the initial evidentiary hearing, the single justice in this matter declined to authorize Bailey's admission to the Bar until Bailey adequately addressed an outstanding judgment against him for a tax obligation that was then estimated to be approximately $2 million. After Bailey moved for reconsideration, the single justice determined that Bailey could be admitted because he was making a genuine effort to meet his tax responsibilities by seeking to resolve the matter through the litigation process and because he had paid or resolved every other obligation that had been imposed on him in a final judgment. As the majority notes, we have learned, since the single justice's ruling, that the United States Court of Appeals has affirmed the decision of the Tax Court. See Bailey v. IRS, No. 13-1455 (1st Cir. Mar. 14, 2014). The IRS has filed tax liens of more than $4.5 million against Bailey's property. Accordingly, we would conclude that the single justice's findings must be augmented on this issue.
[¶ 72] In determining the propriety of admission, a single justice must consider whether a particular candidate presents a risk to the public if entrusted with client funds.
[¶ 73] Because we now know that the United States Court of Appeals has affirmed
M.Bar R. 7.3(j)(5)(A)-(F). "[T]he petitioner must present clear and convincing evidence concerning each of the factors described in Rule 7.3(j)(5)." Bd. of Overseers of the Bar v. Campbell, 663 A.2d 11, 13 (Me.1995).
Florida Bar, 803 So.2d at 686-87.
Florida Bar, 803 So.2d at 687.
Florida Bar, 803 So.2d at 687-88.
Florida Bar, 803 So.2d at 688 (alteration in original).
Florida Bar, 803 So.2d at 688-89.
Florida Bar, 803 So.2d at 689.
The letter stated, in pertinent part: "In short order, word got out that a `multi-millionaire druggie' had been arrested, and the interest of many lawyers was evidently stimulated. Mr. Duboc began to consult more attorneys than I can count — which he had every right to do — and was given advice by many that he should have gone to jury verdict."
Footnote 1 of the letter further stated: "I wish to make it very clear that none of these matters represents an incursion upon the attorney-client privilege. Each was known to the government before it was disclosed to me."
Debbie Elliot, Bailey's current partner, also testified as to Bailey's difficulty during the time of his wife's illness:
The central question here is not witness credibility or the adequacy of the single justice's factual findings, but rather whether the sum of the evidence, viewed in the light most favorable to the court's judgment, supports the single justice's findings and ultimate conclusion that Bailey recognizes the wrongfulness and seriousness of his various acts of misconduct as required by Maine Bar Rule 7.3(j)(5)(C). Our analysis turns on the sufficiency of the evidence and not on a reexamination of witness credibility. See Me. Eye Care Assocs. P.A. v. Gorman, 2008 ME 36, ¶ 12, 942 A.2d 707; Taylor v. Comm'r of Mental Health & Mental Retardation, 481 A.2d 139, 153 (Me. 1984).
The dissenting opinion contains no discussion of the record evidence concerning each of the six counts of ethical violations that formed the basis of Bailey's disbarment. By treating "misconduct" as used in Rule 7(j)(5) as an amorphous and general concept, the dissenting opinion avoids the tedious but necessary consideration of the sufficiency of the evidence in relation to specific acts of misconduct. As we discussed at length earlier, in his testimony before the single justice, Bailey failed to acknowledge as wrongful and serious his misconduct in commingling the Japanese stock (Count I); commingling and misappropriating client trust funds (Count II); failing to freeze assets and surrender the Biochem stock pursuant to the January 12 and 25 orders (Count III); giving false testimony before Judge Paul (Count IV); self-dealing (Count V and VII); and disclosing confidential client information (Count VII). These acts of misconduct were among those justifiably characterized by the Florida Supreme Court as "some of the most egregious rules violations possible." Florida Bar, 803 So.2d at 694. Bailey's failure to prove that he recognizes the wrongfulness and seriousness of these acts — acts of misconduct that are central to Bailey's disbarment — defeats his request.
