In the Matter of the Application of Otion Gjini to the Bar of Maryland, Misc. No. 32,
Sept. Term, 2015. Opinion by Battaglia, J.

Bar Admission – Duty of Immediate and Full Disclosure

Applicant’s failure to disclose a Petition to Violate Probation on his Bar Application in
the face of his known obligations to candidly, accurately and currently disclose impinged
upon his character and fitness to practice law warranting denial of his application for
admission to the Bar of Maryland.
Date argued: May 10, 2016
                                 IN THE COURT OF APPEALS
                                      OF MARYLAND


                                      Misc. Docket No. 32

                                     September Term, 2015


                            IN THE MATTER OF THE APPLICATION
                               OF OTION GJINI TO THE BAR OF
                                       MARYLAND


                                          Barbera, C.J.
                                          Greene
                                          Adkins
                                          McDonald
                                          Watts
                                          Hotten
                                          Battaglia, Lynne A. (Retired,
                                          Specially Assigned)
                                                    JJ.


                                     Opinion by Battaglia, J.
                             Barbera, C.J., Adkins and McDonald, JJ.
                                             dissent.




                                       Filed: July 7, 2016
         Rule 5(d) of the Maryland Rules Governing Admission to the Bar of Maryland

renders this Court the final arbiter of character and fitness of an applicant1:


1
    Rule 5 of the Maryland Rules Governing Admission to the Bar of Maryland provides:
         (a) 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 set forth in the application or any relevant
         question asked by a member of the Character Committee, the Board, or the
         Court is sufficient cause for a finding that the applicant has not met this
         burden.
         (b) Investigation and Report of Character Committee. (1) On receipt of
         a character questionnaire forwarded by the Board pursuant to Rule 2(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.
         (2) If the Committee concludes that there may be grounds for
         recommending denial of the application, it shall notify the applicant and
         schedule a hearing. The hearing shall be conducted on the record and the
         applicant shall have the right to testify, to present witnesses, and to be
         represented by counsel. A transcript of the hearing shall be transmitted by
         the Committee to the Board along with the Committee's report. The
         Committee's report shall set forth findings of fact on which the
         recommendation is based and a statement supporting the conclusion. The
         Committee shall mail 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 charges.
         (c) Hearing by Board. If the Board concludes after review of the
         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. The Board shall mail a copy of its report and recommendation
         to the applicant and the Committee. If the Board decides to recommend
         denial of the application in its report to the Court, the Board shall first give
         the applicant an opportunity to withdraw the application. If the applicant
         withdraws the application, the Board shall retain the records. Otherwise, it
                                                                               (continued . . . )
       (d) Review by Court. (1) If the applicant elects not to withdraw the
       application, after the Board submits its report and adverse recommendation
       the Court shall require the applicant to show cause why the application
       should not be denied.
       (2) If the Board recommends approval of the application contrary to an
       adverse recommendation by the Committee, within 30 days after the filing
       of the Board's report the Committee may file with the Court exceptions to
       the Board's recommendation. The Committee shall mail copies of its
       exceptions to the applicant and the Board.
       (3) Proceedings in the Court under this section shall be on the records made
       before the Character Committee and the Board. If the Court denies the
       application, the Board shall retain the records.

Our responsibility to regulate the conduct of attorneys is highlighted in this matter as we

will not grant the application for admission of Otion Gjini who received a probation

before judgment in 2013 for driving while impaired and thereafter failed to disclose on

his application that he had received a Petition to Violate Probation and an attendant Show

Cause Order.

                                      I. Background

       Otion Gjini filed an application with the State Board of Law Examiners (“Board”)

for admission to the Maryland Bar pursuant to Rule 2 of the Maryland Rules Governing

Admission to the Bar.2 In Gjini’s Application, dated May 19, 2014, in response to


( . . . continued)
         shall transmit to the Court a report of its proceedings and a
         recommendation as to the approval or denial of the application together
         with all papers relating to the matter.
                                              ***
         (e) Continuing Review. All applicants remain subject to further Committee
         review and report until admitted to the Bar.
2
   Rule 2(a) provides: “(a) By Application. A person who meets the requirements of
Rules 3 and 4 may apply for admission to the Bar of this State by filing an application for
admission, accompanied by the prescribed fee, with the Board.” Rule 5(a) provides that,
                                                                           (continued . . . )
                                             2
Question 12, which asks for “a complete record of all criminal proceedings” he reported,

among a number of other offenses, that on August 7, 2013 he had been charged with

“driving while impaired by alcohol” and had received a probation before judgment

(“PBJ”).3 Gjini answered “No” to Question 18, which asked:

      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?
      If so, give full details, including any assertions or implication of dishonesty,
      misconduct, misrepresentation, financial irresponsibility, and disciplinary
      measures imposed (if any) by attaching a supplemental statement. You are
      not required to disclose, in response to this question, any juvenile
      proceeding or any criminal proceeding expunged pursuant to Maryland law.
      Maryland law does not permit expungement of convictions.

Gjini also affixed his signature on the application immediately beneath Question 20

which informs applicants of their continuing responsibility to disclose changes to the

information sought by the application:

      Affirmation of Applicant's Duty of Full, Candid Disclosure and
      Applicant's Continuing Duty to Submit Written Notice of Changes to
      Information Sought by the Application: I understand that the required
      disclosures in this questionnaire are of a continuing nature. I hereby
      acknowledge my duty to respond fully and candidly to each question or
      required disclosure and to ensure that my responses are accurate and
      current at all times until I am formally admitted to the Bar of the State of
      Maryland. I will advise the Board immediately and in writing of any

( . . . continued)
“Failure or refusal to answer fully and candidly any question set forth in the
application . . . is sufficient cause for a finding that the applicant has not met [his]
burden” of proving “his good moral character and fitness for the practice of law.”
3
   Gjini’s probation was supervised and included a condition that he “Attend and
successfully complete local Health Department alcohol treatment program and pay any
required costs.”

                                             3
        changes in the information disclosed in or sought by this questionnaire,
        including any pertinent facts developed after the initial filing of this
        application and the facts of any incident occurring subsequent to the
        initial filing of this application.

        I do solemnly declare and affirm under the penalties of perjury, that the
        matters and facts set forth in the foregoing application are true and
        correct.

        I have made and retained a copy of this entire application for my records
        and for use in the event that the original is lost in the mail or during the
        character investigation.

(Italics, underlining and emboldening in original).

        In accordance with Rule 5(b)(1),4 Gjini’s Bar application was forwarded to a

member of the Character Committee for the Seventh Appellate Circuit, David DeJong,

Esquire, because Gjini reflected a Montgomery County address. Mr. DeJong interviewed

Gjini on September 9, 2014 and October 23, 2014 and concluded that Gjini had failed to

bear his burden of proving his character and moral fitness for the practice of law in

Maryland because of Gjini’s August 13, 2013 driving while impaired charge as well as

his extensive driving record which included another alcohol related offense for which




4
    Rule 5(b)(1) provides:
        (b) Investigation and Report of Character Committee. (1) On receipt of
        a character questionnaire forwarded by the Board pursuant to Rule 2(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
Gjini was not prosecuted.5 In addition, Mr. DeJong was concerned about on-line

comments he found that Gjini had written on internet message boards while in law

school. After Mr. DeJong forwarded his recommendation to the Character Committee for

the Seventh Appellate Circuit and before it conducted a hearing under Rule 5(b)(2),6

Gjini received a Petition to Violate Probation filed by his probation officer on December

30, 2014 alleging that Gjini had “failed to verify attending and successfully completing a

local Health Department alcohol treatment program” with a corresponding Show Cause

Order in which Gjini was required to appear on February 18, 2015 in the District Court

for Montgomery County. Gjini’s hearing was postponed due to weather, and Gjini

appeared before a district court judge in Montgomery County on March 23, 2015, just a

5
  Gjini’s driving record reflected that his license was suspended in 2012 for an alcohol
related driving offense, but the offense was not prosecuted. The description on Gjini’s
driving record dated March 10, 2012 stated, “A/R – Suspended – 1st Offense Alcohol
Content .08 or More.” The docket entry for district court dated March 10, 2012, however,
described the incident as “Driver Failure to Stop at Stop Sign Line” and indicated a
disposition of nolle prosequi.
6
  Rule 5(b)(2) provides:
       (2) If the Committee concludes that there may be grounds for
       recommending denial of the application, it shall notify the applicant and
       schedule a hearing. The hearing shall be conducted on the record and the
       applicant shall have the right to testify, to present witnesses, and to be
       represented by counsel. A transcript of the hearing shall be transmitted by
       the Committee to the Board along with the Committee's report. The
       Committee's report shall set forth findings of fact on which the
       recommendation is based and a statement supporting the conclusion. The
       Committee shall mail 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 charges.
The Character Committee conducted a hearing on March 30, 2015, during which Gjini,
represented by counsel, testified and presented the testimony of two additional witnesses.
The Committee called Mr. DeJong as a witness, but he did not participate as a Hearing
Committee member.

                                            5
few days before his Character Committee hearing. The district court judge determined

that Gjini had not satisfied the alcohol education program requirement and gave him sixty

days to complete another program at which time Gjini would need to reappear. Gjini did

not supplement his Bar Application with any of this information at any time.

       Prior to the Character Committee Hearing on March 30, 2015, its Chair, Benjamin

S. Vaughan, discovered Gjini’s Petition to Violate Probation on Case Search;7 the

Character Committee members questioned Gjini during the hearing about the omission of

information related to the Petition to Violate Probation. In a split decision, months later,

the Committee recommended Gjini’s admission to the Bar, over the objection of Mr.

Vaughan and another member of the Committee, Victor M. Del Pino.

       Pursuant to Rule 5(c),8 the State Board of Law Examiners reviewed the Character

Committee’s Report and notified Gjini that a hearing would be held to afford him the

opportunity to support his admission. The hearing was held on December 11, 2015.

Following the hearing, the Board voted unanimously to adopt the recommendation of the

Character Committee that Gjini be admitted.

7
         Case        Search       provides      access      to       information        on
http://casesearch.courts.state.md.us/casesearch/ from case records listed by civil, traffic
and criminal cases in the State. Maryland Courts, Case Search – Frequently Asked
Questions,        http://mdcourts.gov/casesearch2/faq.html     (June       6,       2016),
(https://perma.cc/UKZ9-3666).
8
  Rule 5(c) provides in relevant part:
        (c) Hearing by Board. If the Board concludes after review of the
        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. The Board shall mail a copy of its report and recommendation
        to the applicant and the Committee.

                                             6
       The Board relied on the findings of the Character Committee to reach its decision,

but none of the findings references Gjini’s failure to disclose the Petition to Violate

Probation, although in the hearings before the Character Committee and the Board

Gjini’s failure to disclose the Petition was explored. The Character Committee Report

reflected:

       A. ON-LINE POSTINGS:
               During his investigation of Mr. Gjini's application, Mr. DeJong
       discovered, rather serendipitously, several statements which Mr. Gjini had
       posted to various chat-rooms on the internet as recently as his last semester
       in law-school. Those postings included commentary upon martial arts
       videos and similar matters and are set forth, verbatim, as follows:
       “This guy is a dipshit.”
       “Yo, shut the fuck up so we can watch the video.”
       “The both fight like hoes.”
       “The bully kid was a pussie.”
       “That girl is hot as fuck.”
       “Who is the faggot that made this video?”
       “Just keep games like they are with a PS3 controller. None of this gay shit.”
       “Straight NUTT in that bitch.”
               Mr. Gjini admitted that he posted the statements, above. He
       admitted, further, that the statements were posted while he was in law-
       school and, in fact, many were placed during his last semester in law
       school.
               While the undersigned find these postings to be troubling, we do not
       believe that they are of sufficient magnitude to preclude Mr. Gjini from the
       practice of law.
               The substance and nature of the postings may reflect something of a
       chasm between persons of Mr. Gjini's generation and the undersigned
       members of the Hearing Committee. The language employed by Mr. Gjini
       certainly is not to be applauded and the undersigned would not encourage
       its use. Nonetheless, it appears no worse than that which is commonly
       found on the internet, and that which is regularly employed by pop-music
       stars and sports figures.
              Further, we note that Mr. Gjini expressed what we believe was
       sincere regrets with respect to the use of such language in his sworn
       testimony before this Committee. Thus, Mr. Gjini testified as follows:


                                            7
  [C]ertainly, this whole process, beginning with Mr. DeJong pointing it
  out, was the catalyst that I think is going to make me change my
  ways. I've deleted every one of those comments, because I am
  legitimately ashamed of them. I'm not - I don't want to give off the
  impression that I'm trying to explain or trivialize these comments, but
  there is a distinction to what I meant, because it bothers me
  profoundly, not just in this context, but generally. Like, I almost cried
  when my Mom was talking, because I am not a homophobe and I'm
  certainly not anti-women or anything like that. And the fact that these
  comments can be interpreted, can be correctly interpreted as such is
  what bothers me and is why I'm trying to save some face. But the fact
  is that I made these comments and I am utterly ashamed of them.
        On balance, we do not believe that the postings, however unsavory
they may be, should prevent Mr. Gjini from practicing law in the State of
Maryland.
B. ALCOHOL-RELATED OFFENSES:
        Mr. Gjini admitted that he had been charged with Driving While
Impaired by Alcohol in response to Question 12 (a) of his application for
Admission to the Bar. He further admitted to receiving probation before
judgment. He did not disclose any prior or subsequent alcohol-related
driving offense.
        Mr. Gjini did, however, provide a copy of his rather impressive
Maryland driving record. That record reflects a number of suspensions for
various reasons. Notably, it appears that Mr. Gjini's driving privileges were
suspended on April 25, 2012. The suspension was described on Mr. Gjini's
driving record as “A/R – Suspended – 1st Offense Alcohol Content .08 or
More.” The suspension was associated with ticket No. AJQ96389. The
alcohol-related driving offense identified by Mr. Gjini in his application
was associated with ticket No. 00000000PN0DNG. The date of that offense
was August 7, 2013. This clearly followed the initial alcohol-related
suspension of Mr. Gjini's driving privileges in April, 2012.
        Thus, it would appear that Mr. Gjini was at least investigated for
more than one alcohol-related driving offense in a relatively short period of
time (roughly 18 months), the latter of which was less than a year before he
made application for admission to the Bar. His driving record from the
MVA contains no reference to either offense other than an entry dated
August 7, 2013 (the date of the second offense) regarding an “Order of
Suspension Issued - Refusal 1st Chemical Test.”
        With regard to the earlier of the events referenced above, Mr. Gjini
testified as follows:




                                     8
          A. I didn't know what the stop sign was about. I did not immediately
          link the stop sign with the actual alcohol charge until after the second
          meeting when I confessed, when I told him what happened.
          And I was going under the impression that we were addressing the
          things that I had reported and the things that I had to report, it wasn't -
          this was not an attempt, I mean, to hide from Mr. DeJong something
          that was expunged, which I didn't think I had to report anyways. I
          wasn't trying to steer him another way so he wouldn't catch on to me.
          I'm admitting it right now, even though I wasn't prosecuted.
          Q. So, I want to make sure if Mr. DeJong - and I questioned him
          about this earlier. He makes a statement in his memorandum, which
          I'm sure has been provided to you at some point, “Mr. Gjini is unsure
          and the record does not indicate whether he was actually charged with
          an alcohol-related offense.
          A. Yeah, I am not - I was not sure about that until afterwards. What
          happened was in my first charge I got a bunch of papers and I gave it
          to my lawyer at the time, and him and I went to court, and it was - I
          mean, I'm not going to say it was a blur to me, but I certainly wasn't
          as familiar with the process as I am now. And it's something that he
          said-like he came to me, my lawyer, and said, the cop didn't show up,
          you’re free to go. I was, like, really? I was surprised. He's like, yeah.
          So I left.
              In any event, it appears that while Mr. Gjini may have been charged
       with an alcohol-related offense in March, 2012, the charge was not
       prosecuted. He was charged a second time with an alcohol-related driving
       offense in August, 2013 to which he pled guilty and was granted probation
       before judgment. He would not have been legally entitled to such a
       disposition on the latter charge if he had received probation before
       judgment on the first charge. See, Md. Crim. Proc. Code Ann. § 6-220
       (d)(1) (2015). Accordingly, we do not have any reason to question Mr.
       Gjini's explanation regarding the disposition of the first alcohol-related
       event. Given that that charge was never prosecuted, the simple fact that he
       was so charged should not serve as an impediment to his admission to the
       Bar.
              Mr. DeJong testified that he would not have recommended against
       Mr. Gjini's admission to the Bar based solely upon his alcohol-related
       offense. We agree.

(Internal citations omitted).




                                              9
      The Character Committee Chair, Benjamin S. Vaughan, however, disagreed with

his colleagues and issued separate findings and recommendations at the Character

Committee level in which he stated that, “I do not believe Mr. Gjini has met his burden of

proving his fitness for the practice of law and I cannot recommend his admission.”9 Mr.

Vaughan found Gjini’s on-line comments “patently offensive” but felt that the comments

implicated First Amendment concerns such that they would not preclude his admission to

the Bar. Mr. Vaughan also expressed concern that Gjini’s Petition to Violate Probation

was only disclosed at Mr. Vaughan’s request and then only after Mr. Vaughan found it on

Court Search, that Gjini’s DWI occurred while he was entering his final year of law

school and that Gjini had attempted to satisfy one of his conditions of the probation

before judgment by taking an on-line alcohol treatment course:

            Mr. Gjini's on-line postings are patently offensive.
            I am not impressed with the fact that similar language may find its
      way into the lexicon of popular music or celebrity-based magazines or may
      resemble that which trickles from the mouths of various sports figures and

9
 Committee member Victor M. Del Pino also recommended against admission. Although
Mr. Del Pino did not submit separate written findings and recommendations, he raised
several concerns during the hearing. With regards to the Petition to Violate Probation Mr.
Del Pino was concerned with the lack of communication between Gjini and his probation
officer:
       [Mr. Del Pino]: So the way that I read this is that you really weren’t
       communicating with your probation officer. I mean, is that accurate?
       [Gjini]: That is, to an extent it is accurate.
Mr. Del Pino also expressed concern that Gjini was not taking accountability for what
could be construed as his lack of candor:
       So you’re a college graduate, a law school graduate, and it appears as if
       many of your responses here to us today is to me sort of passing the buck.
       It’s the probation officer or me didn’t know this, or Mr. DeJong must have
       misunderstood that. And, you know, you made a statement regarding
       candor a moment ago.

                                           10
pop-culture icons. I am not willing to have the question of character as it
may pertain to the practice of law be defined by the purveyors of pop-
culture.
        It is not simply a statement of sanctimony to suggest that members
of the legal profession should endeavor to elevate the practice of law above
the transient vulgarities of contemporary society. One can only wonder how
the history of this country might have fared had members of the legal
profession refused to accept as somehow legitimate the culture which
legalized slavery or which institutionalized segregation or anti-Semitism,
all of which were accepted practices and expressions at one time, and all of
which were then, and are now reprehensible. Mr. Gjini's postings continued
a hideous practice of relegating certain persons within our community – in
this instance, women and homosexuals – to second-class status and
subjecting them to derision and exclusion. The very fact that such
expressions directed at any person within our community would continue to
find any degree of acceptance in our culture, pop or otherwise, might be the
most compelling reason why they should not be tolerated among members
of the legal profession. The legal profession cannot aspire to justice on
behalf of just some members of the community to the exclusion of others. If
the profession is going to serve its proper function at all, all members of the
community must be secure in the belief that the law will afford justice to
each of them or the profession will fail altogether. Mr. Gjini's postings were
the antithesis of such a belief.
        To suggest that because statements such as those posted by Mr. Gjini
are not uncommon among members of his generation, Mr. Gjini should not
be held to any greater moral standard is to subjugate the question of
morality and character to the whims of pop-culture. I do not believe this is
appropriate.
        That said, as offensive as Mr. Gjini's on-line drivel may be, and as
offended as I may be in reading the postings, I am equally concerned about
the prospect of the State denying a citizen the right the practice the
profession of his choosing based upon his speech, absent some exception to
the guarantees of the First Amendment of the United States Constitution.
        I note that the Court of Appeals dealt with a similar issue in the case
of Attorney Grievance Comm'n of Maryland v. Alison, 317 Md. 523, 565
A.2d 660 (1989). In that case, the Respondent, a Maryland attorney, faced
suspension of his license to practice law following a string of incidents
involving his estranged wife. The Respondent's behavior was, at times,
threatening and violent on a repeated basis. It also involved profane
language which was directed at his wife, police officers, a Court Clerk, at
least one and perhaps two judges, opposing counsel and a prosecuting
attorney who refused to pursue forgery charges which the Respondent had
brought against his wife.

                                      11
        The Court of Appeals found that suspension of his license to practice
was appropriate. In so doing, the Court responded at length to the
Respondent's claim that suspension based upon speech, however offensive,
would be violative of his First Amendment rights. The Court disagreed,
given the facts of that case. The Court first noted that “Resort to epithets or
personal abuse is not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment as a criminal
act would raise no question under that instrument.” This finding, alone,
might suggest that Mr. Gjini's use of epithets on the internet could serve as
the basis for precluding him from practicing law without offending the First
Amendment. The Court in Alison, supra, went on to point out, however,
that the context of Mr. Alison's profanity and use of epithets resulted in the
disruption of the courts. Thus, the Court stated:
          Alison's conduct in directing epithets toward the opposing
   attorney in Judge Cameron's court and later in Judge Harlan's
   chambers is clearly inimical to the time honored standards for the
   conduct of attorneys. Conduct of this kind has rightfully resulted not
   only in disciplinary sanctions, but in attorneys being found in
   contempt of court.
          Moreover, conduct of this kind is prejudicial to the
   administration of justice. That such conduct does not at the moment of
   its occurrence delay the proceedings or cause a miscarriage of justice
   in the matter being tried is not the test. Conduct of this type breeds
   disrespect for the courts and for the legal profession. Dignity,
   decorum, and respect are essential ingredients in the proper conduct of
   a courtroom, and therefore in the proper administration of justice.
          . . . Where restrictions on the speech of those permitted to
   practice before this State's courts are necessary for their orderly
   functioning, and where regulations are content-neutral in restricting
   the time, place and manner of speech, they do not violate the First
   Amendment's guarantee of free speech.
See, Attorney Grievance Comm’n of Maryland v. Alison, 317 Md. at 536,
565 A.2d at 666 (1989)
        The speech at issue, here, did not take place in a courtroom and was
not directed to other attorneys, clerks, judges or police officers, unlike the
speech in Alison, supra. It was not speech which was uttered during a legal
proceeding under the auspices of professional conduct. It cannot be said to
have impeded the administration of justice, per se. It is not nearly as clear
in this case as it was in Alison, supra, that the restriction on this type of
speech would be necessary for the orderly functioning of those persons
practicing before the State's courts. For this reason, I am hesitant to
conclude that Mr. Gjini's on-line postings, alone, would justify his
preclusion from admission to the Bar.

                                      12
       That said, the speech in this case, certainly would tend to “breed
disrespect for the courts and for the legal profession” if associated with an
attorney, in or out of the courtroom and whether or not it was uttered in a
professional setting.
       Bearing those considerations in mind, the on-line postings were just
one factor to be considered with regard to Mr. Gjini's application for
admission to the Bar.
       In addition to the postings, Mr. Gjini was arrested on two fairly
recent occasions for driving while under the influence of alcohol. The first
of those charges, from 2012, was not prosecuted. The second event, in
2013, while Mr. Gjini was entering his final year in law school, resulted in
a guilty plea and a probation-before-judgment disposition. Thus, while Mr.
Gjini was not convicted of either offense, nonetheless, he is currently on
probation to the Court stemming from the criminal behavior of operating a
motor vehicle while impaired by the consumption of alcohol.
       As a condition of probation, Mr. Gjini was required to participate in
an appropriate alcohol education program. He chose to take an on-line
course. This resulted in the filing of a Petition to Violate his Probation. This
Petition was prepared on December 29, 2014 and approved on December
30, 2014, some three months before the hearing in this matter. A Show
Cause notice was issued on January 8, 2015. The Petition was not disclosed
to the Board of Law Examiners or to Mr. DeJong. Indeed, it was disclosed
to the Hearing Committee only at the request of the undersigned and then
only after the undersigned found the Violation of Probation on Court-
Search.
       (A hearing was scheduled on June 1, 2015. We have been advised by
Mr. Gjini's counsel that the Petition to Violate Probation was “dismissed
due to Mr. Gjini's completing all that was required of him.” His counsel
provided additional documents with respect to Mr. Gjini's attendance at AA
and MADD meetings, his participation in, and completion of an alcohol
counseling program and the dismissal of the Petition to Violate Probation.
Those additional documents have been included in the exhibits attendant to
this hearing.)
       I am troubled by the fact that Mr. Gjini’s involvement with the
criminal justice system occurred while he was about to begin his final year
in law school. I am troubled by the fact that his approach to the
requirements of his probation resulted in a petition to violate his probation.
His approach to the requirements of his probation - to take an on-line
alcohol education course rather than participate in a program with a live
instructor/counselor - suggests a cavalier attitude toward the instructions of
the Court and the requirements of Mr. Gjini's probation. This is far less than
I would expect of a law-school graduate making application for admission


                                      13
       to the Bar while on probation to the Court for a serious driving - and
       criminal - offense.
              I am equally troubled that Mr. Gjini did not disclose the fact that he
       was facing a charge of violating his probation until that charge was found
       by the undersigned. This lack of candor is less than I would hope to see in
       an applicant for admission to the Bar who bears the burden of proving his
       character and moral fitness for the practice of law. See, e.g., In the Matter
       of the Application of Gregory John Strzempek for Admission to the Bar of
       Maryland, 407 Md. 102, 962 A.2d 988 (2008).
              All of the factors combined lead me to conclude that Mr. Gjini has
       not borne his burden of proving his character and moral fitness.
       Accordingly, I cannot recommend his admission to the Bar.

(Internal citations omitted.)

       Mr. Gjini’s failure to disclose the Petition and its attendant hearing, which had

been discovered by Mr. Vaughan, had been the subject of questioning of Gjini by his

counsel at the hearing:

       [GJINI’S COUNSEL]: Okay. And now with regard to your current DUI,
       you have an outstanding violation of probation; is that correct?
       [GJINI]: Yes, sir.
       [GJINI’S COUNSEL]: You did have a hearing on March the 23rd, 2015,
       just a few days ago?
       [GJINI]: Yes, sir.

Gjini did not supply, however, the Character Committee with any documentation

regarding his hearing in the district court nor with a copy of Gjini’s Petition to Violate

Probation; the latter was only provided at the request of Mr. Vaughan during the hearing.

The issue of Gjini’s failure to disclose the Petition also was raised and explored during

Gjini’s testimony when Nancy Fey, a member of the Character Committee, asked Gjini if

he had been aware of his obligation to supplement his Bar application:

       [MS. FEY]: Are you aware that the application is continuing in nature and
       that you have an obligation to report situations, so that when this came up


                                            14
         you at the very least could have reported it to Mr. DeJong or perhaps Mr.
         Vaughan, the violation of probation situation?
         [CHAIRMAN VAUGHAN]: Actually, the requirement is that the
         application be amended at the Board, so the notification would have to go
         to the Board.
         [GJINI]: Okay. No, I wasn’t aware of that. I told [my attorney] about it, and
         I figured – he said that it would have to be addressed at this hearing, so I
         figured it was all taken care of. You know, not taken care of, but that it
         would be addressed here.
                And at first, the first date was the same day, I had – I would have
         had both hearings the same day, and I figured since he said that it would
         have to be addressed here, I figured that if nothing was pushed I could have
         sorted that out and come here with it sorted out.

         During the hearing before the State Board of Law Examiners, Gjini’s counsel

raised the issue of Gjini’s failure to disclose the Petition to Violate Probation:

          [GJINI’S COUNSEL]: The other issue that came up regarding the candor
         in a bar admission matter is the issue with the violation of probation that
         Mr. Gjini was – he was – there was a petition for a violation of his
         probation that the character – at the character committee was confused as to
         why he did not mention it to them prior to the hearing. And if you can
         elaborate on the issue as to what happened – why was there a violation of
         probation and what you could – why it was not disclosed to the character
         committee prior to the hearing that took place on March 30th?
                                               ***
         [GJINI]: Right. So as soon as I received the letter – my violation of
         probation hearing was actually scheduled the same day as my initial
         interview, but they were both postponed because there was that huge snow
         storm last year that we had, they were both postponed, but two different
         days. So as far as I was concerned, I was going to go to my probation
         hearing first and then go to my character and fitness, so I figured that – I
         was under the impression this was all some sort of huge misunderstanding,
         because like I said earlier, Ms. Howell[10] would always come up with a
         different reason as to why my program wasn’t good enough, culminating
         with the judge needs to okay it because it’s on-line.
                So I sent her all the information . . . and I thought that she kind of
         realized that I shouldn’t be violated. And I even sent her an e-mail saying,
         oh, like are we still going to court, because I thought that it was going to be,

10
     Talaya Howell was Gjini’s probation officer.

                                               15
       like, totally resolved prior to my court date, and that was my goal because
       obviously I don’t want to go to court for something that I didn’t think that I
       did. And she said, yeah, something to that effect, but I still have to show up
       to court because the judge has to approve the course.
               So that day I went to court, the day came after it was postponed. The
       date came and I went to court and this was probably like April, like early
       April, April 1st or maybe, like, late March. Then I went there with my
       documents all by myself and I thought that it was just going to be, here you
       go, Judge, like I completed the course, so this is baseless, basically. And
       Ms. Howell said, oh like, to the judge, it was like oh, Your Honor, I have
       asked him repeatedly for this and that and he finally gave it to me, et cetera,
       et cetera. So even she – she wasn’t really against me either, but the judge
       essentially concluded that because my course was online that it might be
       like a bogus course, so to speak, because I think the impression that he got
       was you could just click play, and go do something else and then come
       back and you’d be done with the course, but the course actually had like a
       safeguard for that. . . . But the judge ultimately said that it wasn’t a good
       course.

Additional questions relative to Gjini’s failure to disclose were raised by Matthew T.

Mills, a member of the Board, to which Gjini responded that his assumption was that he

did not have to disclose the Petition:

       [MR. MILLS]: And can you explain to me again, I’m confused as to why
       the committee felt that you had not been up front about the violation?
       [GJINI]: I mean, I guess the committee wanted me to edit my – this is my
       best guess, I’m not sure, but I think they wanted me to edit my application
       to I guess, say that I’d been charged with a violation of probation, but I was
       under the impression . . . that I don’t have to make this change until the
       matter is resolved[.]
       ***
       [MR. MILLS]: Yeah, I mean, I – so you assumed that because you had not
       actually been found guilty of the violation that you didn’t have to tell us?
       [GJINI]: Well, I assumed that and also I assumed that it would be
       withdrawn and that it wasn’t going to be something that I would even have
       to go to court for.
       ***
       [MR. MILLS]: I guess what I’m trying to figure out is if you read our
       application, it is abundantly clear that we basically want to know
       everything about you and everything you have ever done and anything and
       everything that anyone has ever said about you, so why would you make

                                             16
         this assumption? Even if it was withdrawn, even if it was a complete and
         total mistake, why would you assume that you didn’t have to tell us?
         [GJINI]: Well, I can certainly accept that that assumption was incorrect,
         absolutely I definitely should have, but I didn’t think that I had done
         anything wrong and I didn’t think that it was going to be an issue at all.
         And I also told my lawyer and he said, oh we’ll just talk about it at the
         character and fitness hearing. So I figured that it was going to be addressed
         there.
         [MR. MILLS]: Okay.
         [GJINI]: Sorry.

Although an issue, obviously, before the Board the Board did not issue any findings

relative to Gjini’s failure to disclose his Petition to Violate Probation and its attendant

proceedings.

         During the show cause hearing before this Court,11 Gjini’s counsel explained

Gjini’s failure to disclose the Petition as follows:


11
     Rule 5(c) and (d) provide in relevant part:
         (c) Hearing by board. * * * If the Board decides to recommend denial of
         the application in its report to the Court, the Board shall first give the
         applicant an opportunity to withdraw the application. If the applicant
         withdraws the application, the Board shall retain the records. Otherwise, it
         shall transmit to the Court a report of its proceedings and a
         recommendation as to the approval or denial of the application together
         with all papers relating to the matter.
         (d) Review by Court. (1) If the applicant elects not to withdraw the
         application, after the Board submits its report and adverse recommendation
         the Court shall require the applicant to show cause why the application
         should not be denied.
         (2) If the Board recommends approval of the application contrary to an
         adverse recommendation by the Committee, within 30 days after the filing
         of the Board's report the Committee may file with the Court exceptions to
         the Board's recommendation. The Committee shall mail copies of its
         exceptions to the applicant and the Board.
         (3) Proceedings in the Court under this section shall be on the records made
         before the Character Committee and the Board. If the Court denies the
         application, the Board shall retain the records.

                                              17
       He was aware that you have to update your Bar application until it is
       approved by this Court. However, he was under the impression, and this is
       where he might have made a calculated error in the fact that, he felt that it
       was just a mistake—the probation of violation was a mistake. . . . In
       hindsight Mr. Gjini made an error in not notifying the Character Committee
       right away of the possibility of a violation of probation even though it was a
       mistake—that was a calculated error on his part.

                                      II. Discussion

       Based upon our review of the record, contrary to the recommendation of the State

Board of Law Examiners based upon the omission of any consideration to address Gjini’s

failure to disclose his Petition to Violate Probation and its attendant Show Cause Order

and the hearing that followed, we determine that Gjini does not possess the present good

moral character to practice law in Maryland; Gjini completely failed to supplement his

Bar application with any of the facts developed solely through the efforts of Mr.

Vaughan, the Chair of the Character Committee.12

       We are not persuaded that Gjini’s failure to disclose is mitigated in any way by his

various excuses which varied from initially not knowing he had to disclose, then with his

assumption that he did not have to disclose and finally, that his failure was a calculated

error. We have consistently stated that disclosure on the Bar application and

supplementation is mandatory:

       [W]e emphasize that disclosure on the Bar application and immediate and
       full supplementation after an incident warranting exposition is mandatory,

12
  The Court, consistent with its practice, has recounted, in full, the procedural history of
the character committee proceedings, including the discovery of the applicant's electronic
commentary and the character committee's expressions of concern. The Court's decision
to deny Gjini's admission to the Bar, however, is not, in any way, premised on that
commentary.

                                            18
       not voluntary. It is not the choice of a candidate for admission whether to
       disclose and under what conditions.

Application of Strzempek, 407 Md. 102, 113, 962 A.2d 988, 994.

       In Application of Strzempek, 407 Md. at 115, 962 A.2d at 995, we determined that

disclosure must be made “immediately and fully” and that a delay in disclosing relevant

matters may result in the denial of admission to the Bar. Strzempek pled guilty to driving

while intoxicated after submitting his application for admission to the Bar and

subsequently served four days in jail. Strzempek then failed to supplement his admission

application and only disclosed his arrest several months later after receiving his Bar

Examination results and Affirmation Form. Strzempek argued that he intended to

eventually disclose the conviction, but we stated that, “His choice not to disclose in the

face of these known obligations, however, impinges upon his character and fitness to

practice law, irrespective of any purported ultimate intent” and denied his application for

admission to the Bar of Maryland. Id. at 114, 962 A.2d at 995. We explained that

“absolute candor is a requisite for admission to the Maryland Bar” and this requirement

includes “immediate and full disclosure”:

       Question [20] on the Bar Application clearly emphasizes the requisites of
       immediate as well as full disclosure. The Rule governing the purpose of the
       Character Committee interview, which charges its attorney members with
       “verifying the facts stated in the questionnaire . . . and making any further
       investigation . . . necessary or desirable,” also is dependent upon immediate
       and full disclosure by the applicant, for otherwise, the process of
       investigation is stymied. . . . In our recent cases involving bar admission,
       especially, Application of Stern, 403 Md. at 634, 943 A.2d at 1258, and
       Application of Brown, 392 Md. at 58, 895 A.2d at 1058, we also have
       emphasized that, “it is a given that good moral character includes
       truthfulness and candor, and absolute candor is a requisite of admission to
       the Maryland Bar.”

                                            19
Id. at 113-14, 962 A.2d at 994-95 (emphasis in original).

       Gjini made a choice not to disclose not only the Petition to Violate Probation but

the court proceedings that followed. We are only able to evaluate Gjini’s lack of candor

because a Character Committee member was doing his “job” and found information that

was material to the evaluation of Gjini’s character and fitness. Gjini never supplemented

his Bar application with any of the information related to a process in which his probation

before judgment was the subject of a Petition to Violate Probation and in which a hearing

before a district court judge was held. Gjini’s disregard of his obligation to disclose,

whether because of ignorance or calculated error does not warrant his admission to the

Bar of Maryland; Gjini has failed to bear the burden to prove his present good moral

character and fitness, and we deny his application for admission to the Bar of Maryland.

                                                 IT IS SO ORDERED.




                                            20
Argued: May 10, 2016

                           IN THE COURT OF APPEALS

                                  OF MARYLAND



                                 Misc. Docket No. 32

                                September Term, 2015



                       IN THE MATTER OF THE APPLICATION
                          OF OTION GJINI TO THE BAR OF
                                  MARYLAND



                                 Barbera, C.J.
                                 Greene
                                 Adkins
                                 McDonald
                                 Watts
                                 Hotten
                                 Battaglia, Lynne A., (Retired,
                                    Specially Assigned),

                                        JJ.



                        Dissenting Opinion by Adkins, J., which
                         Barbera, C.J. and McDonald, J., join.



                                        Filed: July 7, 2016
       Respectfully, I dissent from the decision of the Majority to deny admission to Mr.

Gjini to the Maryland Bar for lack of character and fitness. The Majority finds offensive

his failure to disclose to the State Board of Law Examiners the fact that he received a

Petition to Violate Probation and an attendant Show Cause Order after he chose to take an

online course, instead of an appropriate in person course, to satisfy a condition of his

probation.

       The State Board of Law Examiners has recommended that we admit Mr. Gjini,

notwithstanding his Petition to Violate Probation and the hearing that followed. The

Board unanimously adopted the recommendation of the Character Committee for the

Seventh Appellate Circuit. The Character Committee concluded as follows:

              The undersigned are satisfied that this testimony confirms a
              proper degree of contrition and understanding as to the impact
              of such behavior upon one’s character and fitness for the
              practice of law. We do not believe the charges or the conduct
              behind the charges should prevent Mr. Gjini from entering the
              practice of law.

Report and Recommendation of the Hr’g Comm., In the Application for Admission to the

Maryland Bar of Otion Gjini 7 (2015).

       I agree with the Board of Law Examiners and the Character Committee that he

should be admitted. His alleged violation of probation—the taking of an online course

rather than participating in an appropriate course in person—is a rather minor

transgression, and less consequential than the conduct in In the Matter of the Application

of Gregory John Strzempek for Admission to the Bar of Maryland. 407 Md. 102, 104

(2008) (considering the applicant’s failure to update his application to reflect that he pled
guilty to driving while intoxicated). Although Mr. Gjini clearly was under the obligation

to supplement his Application for Bar Admission, not doing so under these circumstances

should not constitute the basis for denying him the privilege of practicing law for which he

has studied.

       Chief Judge Barbera and Judge McDonald have authorized me to state that they join

in the views expressed in this dissenting opinion.




                                             2
