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In re Application Of Gjini

Court of Appeals of Maryland

July 7, 2016

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

          Date argued: May 10, 2016

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

          OPINION

          Battaglia, J.

         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 applicant[1]:

(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 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 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 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 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.

         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:
[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 ...

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