549 F. 2d 913 - In the Matter of Maurice Louis Braverman National Lawyers Guild Amicus Curiae

In 1952 Lawyer Maurice L. Braverman was convicted of participation in a Communist conspiracy in violation of Section 2 of the Smith Act, 18 U.S.C. § 2385. As a result of his conviction, he was barred from practice in both state and federal courts in Maryland. Braverman v. Bar Assoc. of Baltimore City, 209 Md. 328, 121 A.2d 473 (1955); In re Braverman, 148 F.Supp. 56 (D.Md.1957). Nearly 19 years later, on March 1, 1974, the Maryland Court of Appeals granted Braverman's petition to be reinstated as a member of the bar of Maryland, In re Braverman, 271 Md. 196, 316 A.2d 246 (1974). His identical petition for reinstatement to the bar of the United States District Court for the District of Maryland, however, was denied, In re Braverman, 399 F.Supp. 801 (D.Md.1975).1 Because the reasons assigned by the district court for declining reinstatement are without evidentiary support, and in the interest of symmetry in the standards of qualification of coordinate courts in the same state, we reverse and remand with instructions that Mr. Braverman be reinstated to the bar of the Maryland District Court.

Braverman was first admitted to the Maryland bar in 1941 and practiced law in Baltimore for 11 years. During this time he became involved with the Communist Party, U.S.A. The details of his participation in Communist Party affairs are set forth in the opinion of this court affirming his Smith Act conviction, Frankfeld v. United States, 198 F.2d 679, 686 (4th Cir. 1952):

Defendant Braverman had served as a member of the District Committee of the party, had been a candidate for chairman at one of its meetings, had served as its attorney, was a member of its "white collar club" and had conducted classes for it in his home.

Braverman was sentenced to three years in prison and fined $1,000 for his involvement in a conspiracy to teach, advocate and organize the overthrow of the government by force and violence in violation of the Smith Act. He paid his fine and served 28 months in prison.

After release, Braverman severed his ties with the Communist Party and, in order to support his wife and two children, embarked upon a new career as a bookkeeper for small businessmen. By the 1960's, he had resumed an active role in neighborhood politics. In 1969 he was elected an officer of the Fifth District New Democratic Coalition, a political club which included as members several Maryland state legislators. In the 1970's Braverman served as president of St. John's Council on Criminal Justice, an association concerned with correctional and criminal justice. His record and conduct have been in every way exemplary.

Braverman's effort to regain the right to practice law was strongly supported by numerous letters of endorsement from members of the Maryland bar, state legislators, doctors, professors, clergymen and other persons of distinction. Fifty of his neighbors endorsed a petition asking that he be reinstated. After conducting an independent investigation, the Maryland State Bar Association unequivocally recommended to the Maryland Court of Appeals that Braverman be readmitted to practice law in that state. The state bar has reiterated its position with regard to Braverman's current attempt to obtain reinstatement to the federal bar. No contrary testimony or evidence was forthcoming, and no opposition to Braverman's reinstatement has been expressed.

Braverman's petition for reinstatement was referred to a panel of three Maryland judges. The Bar Association of Baltimore represented to the panel that "there has not been a scintilla of evidence presented to the executive council of the Bar Association of anything derogatory about Mr. Braverman . . . and (we have) no information that is contradictory to what (those persons testifying and writing letters on Braverman's behalf) state about his character and his honesty and his trustworthiness since his release from prison and during the period subsequent to his release." The panel recommended that Braverman be reinstated, concluding that he had proven "by clear and convincing proof his fitness to practice law."

During the evidentiary hearing before the three-judge state panel, Braverman conceded that his conviction for violation of the Smith Act was final, but insisted, as he always has, that he lacked the personal intent to use force and violence to overthrow the government of the United States. Consistent with that position, he has never expressed penitence and contrition. The panel remarked:

(The) intellectual honesty of his position must be recognized. . . . We believe petitioner has demonstrated his reformation without an expression of contrition from him. Starting from the premise that his guilt was conclusively proven, we find his conduct since conviction to be a complete turnabout from that which resulted in his conviction. . . . We believe this constitutes reformation as this term is used in the present proceedings.

Regarding Braverman's moral character, the state court panel found that "the impressive and unchallenged evidence presented by the petitioner of his present good character clearly established his eligibility for reinstatement on this score."

The Maryland Court of Appeals accepted the recommendation of the special panel, and ordered Braverman reinstated to the Maryland bar.

What had transpired in the state court was virtually repeated in the United States District Court hearing. The majority, concurring, and dissenting opinions in the district court, supra, 399 F.Supp. 801, simplify our task considerably. We put to one side, as did the district court, all questions having to do with Braverman's guilt. It is enough that he was convicted and his conviction affirmed, and he himself concedes that conviction is final, unappealable, and no longer subject to collateral attack. Therefore it matters not whether under a higher burden of proof put upon the government by a later Supreme Court decision there might have resulted an acquittal.2 Nor need we decide anew whether conviction of a violation of the Smith Act involved moral turpitude for the simple reason that Braverman does not attack the validity of his disbarment, but instead insists only that he is entitled to reinstatement. Finally, we need not decide what went on in Braverman's mind in the 1950's when he was a member of the Communist Party, and specifically whether he believed in the use of force and violence to overthrow the government of the United States. It does not matter, because the district court, although put off by Braverman's continuing insistence upon his innocence, did not rest its refusal to reinstate upon the ground that Braverman was lacking in contrition. Instead the court seemed to recognize, as did the Maryland Court of Appeals, that mea culpa is not a part of our criminal law, and that there is always a theoretical possibility of innocence despite any guilty verdict.

It is perfectly clear that Braverman was denied reinstatement for one reason only: in colloquy with the hearing panel he was thought to have dissembled with intent to mislead the panel. We agree with the district court that one who has been disbarred has the duty to be truthful in proceedings seeking reinstatement, and that a failure to be truthful would support a conclusion that the applicant has not been sufficiently rehabilitated to deserve reinstatement as a member of the bar.3

The district court based its conclusion of lack of candor on a colloquy in open court and a published interview with Braverman.4 The pertinent colloquy is set out in the margin.5 The conversation begins with a statement by Judge Thomsen to the effect that the Marxists and Lenin advocated force and violence for the overthrow of capitalist governments and ended with a question: "Didn't he say that it couldn't be accomplished otherwise ?" (Emphasis added.) Note that Braverman was not asked to respond to the judge's statement that Lenin advocated force and violence. He answered the only question propounded, and said that Lenin and other Marxists did not exclude peaceful means of Communist expansion.

His viewpoint is not without support. It is true that in one of his works Lenin said, "The substitution of a proletarian for a capitalist state is impossible without violent revolution." But as the Supreme Court noted in Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), Lenin and other Marxists said more than that:

The Manifesto of 1848 was proclaimed in an autocratic Europe engaged in suppressing the abortive liberal revolutions of that year. With this background, its tone is not surprising. Its authors later stated, however, that there were certain countries, "such as the United States and England in which the workers may hope to secure their ends by peaceful means." Lenin doubted this in his militant work, The State and Revolution, but this was written on the eve of the Bolshevist revolution in Russia and may be interpreted as intended in part to justify the Bolshevist course and refute the anarchists and social democrats. Stalin declared that Marx's exemption for the United States and England was no longer valid. He wrote, however, that "the proposition that the prestige of the Party can be built upon violence . . . is absurd and absolutely incompatible with Leninism." And Lenin wrote "In order to obtain the power of the state the class conscious workers must win the majority to their side. As long as no violence is used against the masses, there is no other road to power. We are not Blanquists, we are not in favor of the seizure of power by a minority."

Schneiderman v. United States, 320 U.S. 118, 155-56, 63 S.Ct. 1333, 1351 87 L.Ed. 1796 (1943). Certainly what Lenin believed is a matter not so clear that either we or the district court could judicially notice the correct answer to Judge Thomsen's question.6

But before Braverman got through with his answer, he said, "but I never came across where force and violence, as a way of achieving change, was ever heard." (Emphasis added.) He had begun that same sentence with the words, "I read some things . . . but . . . ." It is possible to interpret the sentence elliptically to mean, "I have read about force and violence as a teaching of the Communist Party, but I never personally heard it in my own cell." Such an interpretation is entirely consistent with Braverman's last two sentences referring to the American Communist Party Constitution and its rejection of force and violence as an instrument of change. He was right about that.7

The district court interpreted the same colloquy as follows:

Asked by a member of our panel whether Lenin did not advocate the use of force and violence, Braverman answered that he had followed very carefully the discussion of the works of Marx and Lenin in the Schneiderman case before he joined the Communist Party; that he had read some but not all of their works, and that he "never came across force and violence as a way of achieving a change."

399 F.Supp. at 803-04. The comparison with the actual colloquy set out in the margin discloses plain error. Braverman was not even asked whether Lenin advocated force and violence. Instead, he was asked whether Lenin had said that the advance of communism could not be accomplished otherwise. Thus the conclusion that Braverman answered untruthfully is without factual support.

The other finding of fact upon which the district court premised its conclusion that Braverman had intended to mislead the panel had to do with Braverman's interpretation of Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943). The district court found that in a published speech made at the law school of the University of Maryland, which speech was called to his attention during the hearing before the panel, Braverman had said, "And, as a matter of fact, it was because I was assured by the Supreme Court in the Schneiderman case that the Communist Party did not believe in force and violence that I joined the Communist Party."8 But again the district court quoted Braverman out of context. The full quotation is set out in the margin.9

In the oral interview, Mr. Braverman attempted to capsule the Schneiderman decision three times. As printed in the lawyers edition of the United States Supreme Court Reports, Schneiderman begins on page 118 of 320 U.S., on page 1333 of 63 S.Ct., on page 1796 of 87 L.Ed. and, including the dissenting opinion and an appendix, ends on page 207 of 320 U.S., on page 1345 of 63 S.Ct., on page 1846 of 87 L.Ed. It is not easy to state in one sentence what a 50-page opinion of the United States Supreme Court holds. Mr. Braverman, we think, did it about as well as anyone could twice, and argumentatively a third time. See the italicized portions of the excerpt set out in footnote 9. We think it fair to say that Schneiderman does stand for the proposition, as Mr. Braverman said, that taking the oath of allegiance to the United States and being a member of the Communist Party are not incompatible. His statement that Schneiderman held that the Communist Party did not necessarily believe in the principle of force and violence is also substantially correct, although it would be more accurate to say that the Court held the government had failed to prove that the Party adhered to such principles. It seems to us that Mr. Braverman went a bit far in saying that he was assured by the Supreme Court in Schneiderman that the Communist Party did not believe in force and violence. But we are not prepared to say that one of his biases could not have found such assurance in a decision clearly holding that an American citizen can be loyal to the Constitution and at the same time a member of the Communist Party. Since Schneiderman made membership in the Communist Party legitimate for Americans, and since the Court has always set its face against the violent overthrow of the United States, it is not wholly untenable to attribute to the Court, although it did not say so,10 belief that the Communist Party did not believe in force and violence as a means of seeking power.

But more importantly, it seems to us that a readmitted member of the Maryland Bar should not be denied admission to a federal court because he exaggerates Supreme Court doctrine in conversation that also includes two reasonably accurate statements of what the Court held. We are semanticists, and it is a part of our profession to embellish, interpolate, and even speculate as to what a decision truly means. Argument and discussion would be pretty sterile if limited to the actual words spoken by the Court.

Admission to practice in the United States District Court for the District of Maryland is predicated upon good standing in the bar of any court of the United States or of the highest court of any state and possession of good private and professional character. Reinstatement after disbarment is judged by one standard only that the motion set forth facts showing good cause why readmission should be granted and that the movant is rehabilitated.11 The district court referred to the readmission procedures in the Maryland Court of Appeals and did not question that facts had been presented showing good cause why readmission should be granted. It could scarcely have done otherwise in view of the findings of the Maryland Court of Appeals, recited hereinabove. In re Braverman, 271 Md. 196, 316 A.2d 246 (1974).

Thus the only question remaining was whether Braverman had been rehabilitated. Although concerned with his failure to express penitence, as we have previously noted, the district court, perhaps persuaded by the viewpoint of the Maryland Court of Appeals, did not refuse readmission on that ground. As we read the majority opinion,12 Braverman was denied readmission solely because he made statements to the panel of the court "either recklessly or with intent to mislead the panel." 399 F.Supp. at 807. For the reasons stated hereinabove, we conclude that there is not substantial evidence to support the ultimate finding upon which readmission was denied.

The issue before us is similar to that decided in Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957):

Does the evidence in the record support any reasonable doubts about (Braverman's) good character or his loyalty to the Governments of State or Nation?

353 U.S. at 262, 77 S.Ct. at 727. In answering that issue in favor of the applicant, the Supreme Court said that if there is insufficient evidence in the record to support an adverse finding, "California's refusal to admit him is a denial of due process and of the equal protection of the laws because both arbitrary and discriminatory."

A State can require high standards . . . such as good moral character . . . , but any qualification must have a rational connection with the applicant's fitness . . . to practice law. . . . Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards . . . .

Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957).

In In re Isserman, 345 U.S. 286, 73 S.Ct. 676, 97 L.Ed. 1013 (1953), the Supreme Court, in a plurality opinion, had this to say about the relationship between state and federal bar admission:

Disbarment by a state does not automatically disbar members of our bar, but this Court will, in the absence of some grave reason to the contrary, follow the finding of the state that the character requisite for membership in the bar is lacking.

345 U.S. at 288, 73 S.Ct. at 677.

In Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971), the Court said:

The practice of law is not a matter of grace, but of right for one who is qualified by his learning and his moral character.

401 U.S. at 8, 91 S.Ct. at 707. The Court held that where the record is bare of evidence showing moral and professional disqualification it was error to deny admission. The judgment of the Arizona Supreme Court was reversed.

In the case of In re Dreier, 258 F.2d 68 (3d Cir. 1958), the district court's refusal of admission to membership in the bar was reversed and remanded by the Court of Appeals. The court had this to say that is especially applicable to Braverman's case:

Under (the rule in this district), and the similar rules in force in most other federal district courts and in the courts of appeals, reliance is largely placed by the court upon the courts of the states for determining the qualifications of persons seeking admission to the bar. . . . (T)here is no federal procedure for examining applicants either as to legal ability or moral character and so reliance is placed on prior admission to the bar of a state supreme court.

(A)s we have said (the court that tried him) subsequently reinstated him and it was stated at argument in our court that the president judge of that court has certified that the appellant is of good moral character and a member of the bar of that court in good standing.

Certainly an erring lawyer who has been disciplined and who having paid the penalty has given satisfactory evidence of repentance and has been rehabilitated and restored to his place at the bar by the court which knows him best ought not to have what amounts to an order of permanent disbarment entered against him by a federal court solely on the basis of an earlier criminal record and without regard to his subsequent rehabilitation.

258 F.2d at 69-70.

In the case of In re Abrams, 521 F.2d 1094 (3d Cir. 1975), the Third Circuit reversed outright the decision of a district court disbarring an attorney from the practice of law. The state court had imposed a one-year suspension, but the district court had permanently disbarred the applicant.

In striking the appropriate balance, the district courts must not operate in a vacuum. If the disciplinary proceedings derive from state court action, federal courts are not totally free to ignore the original state court proceedings(.)

521 F.2d at 1099-1100.

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

521 F.2d at 1106.

The anomaly in Abrams and in this case is only compounded when Federal Rules of Appellate Procedure 46 is taken into consideration. The rule reads in part:

(a) Admission to the Bar of a Court of Appeals; Eligibility; . . . An attorney who has been admitted to practice before the Supreme Court of the United States, or the highest court of a state, or another United States court of appeals, or a United States district court . . . and who is of good moral and professional character, is eligible for admission to the bar of a court of appeals.

(Emphasis added.)

Since Braverman has been reinstated by Maryland's highest court, he is eligible for admission to practice in this court if of good moral and professional character.

Because the evidence relied upon by the district court does not support its ultimate finding that Braverman has not been rehabilitated, and because of a proper deference to the considered judgment of the coordinate Maryland Court of Appeals, we reverse and remand with instructions to admit Braverman to practice in the district court.

REVERSED.

I respectfully dissent, but not without some trepidation for fear of being accused of placing myself other than on the side of the angels and Voltaire as quoted in footnote 3. But if that footnote implies, as I fear it may, that the holding of the district court even remotely suggests that admission to the bar may be dependent upon conformity of opinion to that held by a majority of that court, I specifically disassociate myself from any such implication. I find no such suggestion in the district court's majority, concurring, or dissenting opinions.

I need mention only one aspect of the majority opinion to illustrate my point, and express no opinion on its treatment of Braverman's interpretation of Schneiderman. As quoted, Braverman stated at one place "but I never came across where force and violence, as a way of achieving change, was ever heard." (Emphasis added by the majority).

By an elliptical interpretation of the sentence, the majority has taken it, especially "heard, " and twisted both the sentence and the word out of permissible ordinary meanings which the district court was perfectly justified in giving them. A simple illustration will illustrate the error of the majority's way. Suppose a cousin were in Afghanistan, and you were asked "Have you heard from her lately?" A perfectly ordinary meaning would be "Has she written?," but the question might just as well mean "Has she called by telephone, or have you seen anyone from Afghanistan who has knowledge of her?" The majority here, with its construction of the word "heard," would say that it would be perfectly truthful to answer that you had not heard from her, although she might have written, because oral communication had not been had. The district judges heard this communication orally from Braverman. I think they were entitled to give the sentence the ordinary everyday meaning which they did.

It is difficult to argue with the scholarly dissertation on Communist doctrine, theory, and dogma in the opinion of the majority. Yet I think such has no place in this opinion to serve as corroboration of Braverman.

The question here is whether Braverman was playing free and loose with the court in his application for reinstatement. The court found as a fact that he was, which may only have reference to Braverman's intent as he made and pursued his application for reinstatement to the bar. It is not new learning that intent is a matter of fact. United States v. Quincy, 31 U.S. (6 Pet.) 445, 8 L.Ed. 458 (Jan. term 1832). And the last several generations of lawyers have been at home with the teaching that "the state of a man's mind is as much a fact as the state of his digestion." Lord Justice Bowen in Edgington v. Fitzmaurice, 29 Ch.D. 459, 483 (1882). Additionally, I note that even as this dissent is being written, we have reversed a district judge in a criminal case for taking away from a jury, the triers of fact, the question of intent. United States v. Arthur, 544 F.2d 730 (4th Cir. 1976).

Especially since the examination was ore tenus, the credibility of witnesses and the weight of their evidence is a matter peculiarly within the province of the judges who heard the evidence. Their report has been reinforced by a majority of all the judges on the district court. I do not think the finding that Braverman played free and loose with the court, which is bound to refer to his state of mind, is clearly erroneous. F.R.C.P. 52(a). However much either I or the majority may disagree with the triers of fact, unless they are clearly erroneous, we may not reverse. If the judgment of the district court is to be overturned in this case, it must be done on the theory that the findings are clearly erroneous, which I think may not be predicated, as it is, on giving face value to Communist doctrine, theory, dogma, and paraphernalia, which the whole world knows is observed or not observed by any doctrinaire Communist to achieve the result sought at any given moment. I think the majority opinion closes its eyes to reality in this respect. We are not required "to pretend not to know as judges what we know as men." Bell, J., in Johnson v. Branch, 364 F.2d 177, 182 (4th Cir. 1966).

Accordingly, I would affirm the judgment of the district court for the reasons I have stated and for the first two reasons in Judge Miller's concurring opinion, 399 F.Supp. 801, 808 (D.Md.1975).