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08/14/90 ROBERT BAKER PETITIONER

August 14, 1990

IN RE ROBERT BAKER, PETITIONER


On Application for Admission to the Bar of the District of Columbia Court of Appeals

Newman, Ferren and Terry, Associate Judges. Opinion for the court by Associate Judge Newman. Concurring opinion by Associate Judge Ferren.

The opinion of the court was delivered by: Newman

Robert Baker applied for admission to the Bar of the District of Columbia on December 2, 1985, pursuant to Rule 45 (c) (3) (i) of the Rules of the District of Columbia Court of Appeals, which permits an active member in good standing for five years of the bar of another jurisdiction to be admitted without examination upon a showing of good moral character as it relates to the practice of law. The Committee on Admissions ("Committee") initially declined to certify his application for admission on grounds that he had not been actively engaged in the practice of law for five years and that he failed to demonstrate good moral character due to his evasiveness and lack of candor in responding to the Committee's inquiries. On remand, the Committee again refused to certify his application, this time relying solely upon the ground that Baker had failed to demonstrate good moral character. Having reviewed the record and briefs filed in this matter, we order that Baker be admitted to the bar.

I

Baker graduated from the San Fernando Valley College of Law in May 1975. After eleven unsuccessful attempts to pass the California bar examination, he took and passed the July 1980 Georgia bar examination and was admitted to that state's bar on November 13, 1980. Baker went on to fail the California bar examination five more times. On June 9, 1981, he was admitted to the bar of the Tax Court of the United States, and on January 14, 1985, he was admitted to the bar of the United State's Court of Military Appeals. He filed an application for admission to the Bar of the District of Columbia on December 2, 1985, and while that application was pending passed the Utah bar examination and was admitted to the Utah Bar on October 6, 1987.

Baker moved to Atlanta, Georgia in November 1980, where he sublet an apartment and established what is called a "profile" office in a downtown office building, which provided him with meeting, mail, and telephone facilities. During this time Baker also owned a house in California, and evidence suggests that he was physically located in California much or most of the time. In September 1985, Baker left Georgia to study law in an LL.M. program in Brussels, Belgium for one academic year.

Pursuant to Baker's application for admission to the Bar of the District of Columbia, a routine report was prepared by the National Conference of Bar Examiners and received by the Committee on March 17, 1986. The report included six letters from character references attesting to his integrity, character, and legal ability. *fn1 In addition, there were letters from independent sources, including the schools he attended, former employers, other bars to which he had applied or been admitted, all of which indicated that he had a clean record with respect to disciplinary matters. *fn2 However, a portion of the report indicating difficulty in obtaining from Baker references in Georgia who could verify his practice there and that Baker was not listed in Martindale-Hubbell or the Atlanta telephone directory during portions of 1981 and 1983, raised concerns at the Committee that Baker had not satisfied the requirements of Rule 46 (c) (3) (i), which the Committee understood to be that Baker have actively practiced law in Georgia for the five years preceding his application

The Committee asked Baker to attend an informal hearing on July 8, 1986 to pursue the matter. In connection with this hearing, the Committee asked Baker to provide documentation relating to his Georgia practice, including copies of Schedule C to his Form 1040 tax returns for 1981 through 1985, the five years preceding his application, showing annual telephone expenses, and the names of clients or attorneys who could furnish the Committee with information regarding his practice in Georgia.

On October 6, 1986, following a reminder from the Committee, Baker submitted the Schedule C information regarding his telephone expenses for the five years in question. Apparently, he wrote the information on blank Schedule C forms and submitted them to the Committee, rather than submitting copies of the actual forms he had submitted to the IRS. On March 7, 1987, the Committee informed Baker that it would not certify his application.

Baker requested a formal hearing, pursuant to Rule 46 (f), and one was held on June 2, 1987. Members of the Committee questioned Baker on two main issues concerning his application: the nature and extent of his Georgia practice and his response to Question 12 on his application, which requests information regarding an applicant's application, and/or admission to the bars of other jurisdictions.

Concerning the first issue, Baker was asked by several members of the Committee for the names of his Georgia clients. Baker stated that there were three: his girl friend, Pam King, to whom he had given advice on one occasion concerning the preparation of her 1982 personal tax return, and two Atlanta attorneys, Kenneth Webb and Robert McCormack, *fn3 whom he had served in an "of counsel" role regarding the tax problems of their clients. *fn4 He also stated that he had served other attorneys located outside Georgia in similar fashion; he said that this practice was conducted over the phone.

As part of its inquiry into the nature and extent of Baker's Georgia practice, the Committee also questioned Baker about his telephone expenses during the years 1980 through 1985. The Committee asked Baker to submit copies of his complete federal and state tax returns for 1981 through 1985. Baker asked if in doing so he could block out information not relevant to his telephone expenses, and the Committee agreed to his request.

Regarding the second issue, Baker was asked why he had indicated in his response to Question 12 only his first unsuccessful attempt to pass the California Bar examination when he had in fact taken and failed the exam sixteen times. Baker explained that as he understood the question he was being asked to list each state in which he had applied for the bar and not each time within each state he had done so. *fn5

Following the hearing, Baker sent a letter to the Committee, refusing to provide copies of the tax forms requested by the Committee. Noting that he had testified under oath concerning his telephone expenses and Georgia practice, he asserted that by requesting copies of his returns the Committee was questioning his veracity under oath, which he felt in turn was a direct challenge to his "religious convictions." The Committee again decided not to certify his application.

On March 8, 1988, the Committee presented its Report of Findings and Conclusions on Moral Character and Fitness to Practice Law of Applicant Robert Baker "Report" to this court. In its Report, the Committee gave two grounds for its refusal to certify Baker's application: that he had not been actively engaged in the practice of law for five years prior to his application in Georgia, *fn6 and that he had not demonstrated good moral character by his evasiveness and lack of candor in responding to the Committee's inquiries into his practice and background. *fn7

As to the first ground, the Report determined that Baker had not maintained an active practice in Georgia for five years and that he had not maintained a continuous residence there. As to the second ground, the Report faulted Baker not only for evasiveness and lack of candor in responding to the Committee's inquiries, but also because in noting that he had failed the California bar examination on his application, he had not indicated that he had failed the examination more than once.

Baker filed a Memorandum of Points and Authorities with this court in opposition to the Report on May 19, 1988, which included an Appendix containing a number of letters from persons attesting to his active membership in the Georgia State Bar. *fn8 On September 16, 1988, we received a brief from the Committee. After reviewing these documents, we remanded the matter to the Committee for an explanation of its basis for construing Rule 46 (c) (3) (i) as requiring an applicant to have actively practiced law in another jurisdiction, as opposed to having been an active member of the bar of another jurisdiction. In re Robert Baker, 579 A.2d 676, No. 88-223 (April 3, 1989). We also asked for a more particular explanation of the reasons for denying Baker's application. The Committee filed a Report of the Committee on Admissions on Remand ("Report on Remand"), in which it explained its construction of Rule 46 (c) (3) (i), provided more particulars regarding its finding that Baker had failed to demonstrate good moral character, and again refused to certify his application, citing the moral character issue as its sole ground. In its Report on Remand and in its subsequent brief in this court, the Committee abandons any reliance on Baker's answer to the question on his application concerning his attempt to obtain admission in California.

II

We begin with the fundamental premise stated in In re Manville, 494 A.2d 1289, 1292 (D.C.1985), that "t is, ultimately, for this court to decide whether an applicant shall be admitted to the Bar of the District of Columbia." In reaching this decision, we give some measure of deference to the Committee's factual findings, and we will accept those findings, unless unsupported by substantial evidence. Id. at 1293 (citing In re Heller, 333 A.2d 401, 402 (D.C.) (per curiam), cert. denied, 423 U.S. 840, 96 S. Ct. 70, 46 L. Ed. 2d 59 (1975)). However, we have not always afforded this type of deference to the Committee's factual findings. See In re Watts, 557 A.2d 601, 603 (D.C.1989) (too little weight was given by the Committee to affidavits supplied on behalf of applicant). Our deference to the Committee's factual findings must be measured both by our ultimate responsibility to make the decision at hand and by the ex parte nature of the process by which the Committee makes its findings. Manville, supra, 494 A.2d at 1293. The Committee's interpretations of Rules are quite another matter, and we are under no obligation to defer to the Committee in that regard.

In the matter before us, we are called upon to consider the Committee's interpretation of Rule 46 (c) (3) (i) and its legal Conclusion that the applicant failed to demonstrate good moral character by reason of his evasiveness and lack of candor in responding to the Committee's inquiry into his application. We must afford deference to ...


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