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In re Application of Overall

Court of Appeals of Maryland

December 18, 2017

IN THE MATTER OF THE APPLICATION OF MARK ANDREW OVERALL FOR ADMISSION TO THE BAR OF MARYLAND

          Argued: November 6, 2017

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.

          OPINION

          ADKINS, J.

         We consider whether to grant Mark Andrew Overall's application for admission to the Bar of Maryland. The Character Committee for the Sixth Appellate Circuit ("Committee") recommended that Overall's application be denied because: (1) he demonstrated a lack of candor; (2) his law license had been suspended and not reinstated in Alabama; and (3) because he did not accept personal responsibility for his actions. The State Board of Law Examiners ("Board") unanimously agreed that Overall's application should be denied because of his lack of candor in the application process, and the circumstances of his suspension in Alabama. Both the Committee and the Board concluded that Overall had failed to demonstrate that he possessed the necessary moral character and fitness to practice law in Maryland.

         BACKGROUND

         Overall graduated from law school in 2010 and was admitted to the Bar of Alabama that same year, working primarily as a criminal defense attorney. In October 2012, Overall received a private reprimand from the Alabama State Bar for failing to comply with local scheduling conflict resolution rules. Between October 2012 and May 2013, a number of complaints were filed against Overall with the Alabama State Bar. The complaints variously alleged that Overall: (1) failed to appear on behalf of clients, or was tardy; (2) was underprepared for court, leading to a mistrial; (3) had been found in contempt of court after being warned about his conduct; (4) improperly altered a subpoena when he was not authorized to issue subpoenas; (5) improperly filed civil complaints to avoid paying the fee for a jury demand; (6) had not informed a client about a court hearing; and (7) failed to file a written response to a Motion for Summary Judgment.

          On May 28, 2013, Overall entered a conditional guilty plea to multiple violations of the Alabama Rules of Professional Conduct ("ARPC") based on these complaints.[1] Overall agreed to a 91-day suspension held in abeyance and two years' probation. Additional complaints were filed with the Alabama State Bar against Overall during his probationary period. The complaints included circumstances leading to Overall's conviction in July 2013 for resisting arrest.

         Overall was found in contempt of court on November 12, 2012, for failing to appear on time for a scheduled hearing. He was fined $50.00 and court costs. Overall did not pay the fine. At the show cause hearing, which had been continued twice at Overall's request, the judge imposed an additional fine and court costs. When Overall failed to pay his fines and costs in either matter, the judge set another show cause hearing. Overall filed a motion to continue the hearing on the morning it was scheduled to take place. The judge reluctantly rescheduled the hearing. When the hearing finally took place, Overall was held in criminal contempt, and he was charged with resisting arrest after being taken into custody. He was convicted of resisting arrest in Houston County District Court. Overall appealed, and was convicted again in Houston County Circuit Court in a de novo jury trial on April 22, 2015.

         The other complaints alleged that Overall had engaged in inappropriate lines of questioning after being told to desist in a criminal trial, and had been found in contempt in another criminal trial. After receiving these complaints, the Office of General Counsel of the Alabama State Bar filed a Petition to Revoke Probation based on multiple violations of the ARPC.[2] In August 2013, Overall consented to the revocation of his probation and agreed to the 91-day suspension. In the consent agreement, Overall admitted to violating the ARPC as alleged in the Petition to Revoke Probation. Overall was denied reinstatement in March 2014 and October 2015.

         On May 13, 2015, [3] Overall filed an application with the Board for admission to the Bar of Maryland pursuant to Maryland Rule 19-202.[4] The Board forwarded Overall's application to Character Committee members Alicia Wilson, and later Kamil Ismail, for the investigation and interview required by Maryland Rule 19-203(a)(1).[5] Overall was unsuccessful on the July 2015 General Bar Examination, but successful on the February 2016 Examination.

         His application disclosed his conviction for resisting arrest in Houston County District Court, and the case number. Overall stated that his conviction was "pending reversal due to lack of jurisdiction." He did not list his conviction in Circuit Court, although it occurred before he submitted his Bar Application.

         Overall listed some civil actions to which he was a party, but did not list the actions that the Alabama State Bar had taken against him. Overall also indicated that he had been admitted to the Alabama Bar, but did not attach a certificate of good standing, or explain why he was no longer in good standing in the application. Overall responded affirmatively to the question "[h]ave you ever resigned from or been charged, reprimanded, or otherwise disciplined by any school, college, or university, or by any trade or professional organization, at any time for any reason?" He referred to a suspension in school when he was a child, but did not list the actions taken by the Alabama State Bar in his primary application.

         Overall answered "No" in response to the question: "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?" Overall enclosed a "Disclaimer" with his application, which stated:

Please know that the enclosed application packet that is being submitted is based on my information given to the best of my recollection, knowledge, and belief. Much of what is being asked involves information dating back several years and I may not remember such events. Any missing or inaccurate information is simply an error based on my inability to remember and is not designed to be a misrepresentation or concealment of such events. Please do not regard any inaccuracies or missing information as a negative indication or assessment against my character, integrity, or honesty as it is not intended to be conveyed in this manner.

(Emphasis in the original).

         Overall mailed an addendum ("Addendum") with his Bar Application, which contained more information than his initial Application. He included a statement about employment terminations, his driving record in Alabama, a statement of civil actions, [6] and financial disclosures. Overall provided what he described as "an up to date copy" of his disciplinary history in Alabama, explaining that he "hope[d] that this will paint the correct picture of my ability and character as a lawyer and advocate." His disciplinary history included his contempt citations, the Private Reprimand, the Conditional Guilty Plea, the Petition to Revoke Probation and the Consent to Revoke Probation, Orders on the Guilty Plea and Petition, and the Suspension Order. Overall also included the March 2014 Order denying his reinstatement to the Bar of Alabama, and a number of letters from judges and attorneys advocating for his reinstatement.

         At various times while his application was pending, Overall provided supplemental information. In October 2015, Wilson sent Overall a letter requesting additional documentation regarding his: (1) financial obligations; (2) civil actions; (3) criminal actions; (4) disciplinary record with the Alabama State Bar; (5) detailed information on his traffic violations; and (6) a "comprehensive list of any complaints and/or contempts that have been filed against you through any and all bars for which you are affiliated." Wilson also asked Overall to explain why each of these issues did not reflect poorly on his "good moral character and fitness to practice law in Maryland."

         The May 5 and June 6, 2016 Supplements

         Overall's May 5 Supplement disclosed additional traffic citations in Maryland and Virginia, and updated employment information. His June 6 Supplement responded to Wilson's October 2015 letter. He provided more information about his financial obligations and his civil cases. With regard to most of his civil cases, Overall asserted that these matters did not adversely affect his moral character or fitness to practice law because he was "merely asserting [his] constitutional right to seek legal redress in court as provided by the First Amendment."

         Overall also addressed his criminal conviction for resisting arrest. He argued that the judge improperly failed to notify him of his right to appeal after finding him in contempt. He provided the case numbers for both the District Court and Circuit Court proceedings, stated that it was the same criminal action, and identified the Circuit Court proceedings as an "unsuccessful appeal." He did not provide more substantial details regarding the appeal or the proceedings, but insisted that "[t]he judge's contempt adjudication was unlawful in several respects and this judge has been cited and reversed for his improper handling of contempt procedures with lawyers previously by appellate courts."

With regard to his disciplinary history, Overall explained:
I believe you have already received my disciplinary history. Please inform me if this is not accurate. Also please note that I had no control over the synopses that the Office of General Counsel generated for the allegations and many of them are wholly false and are a misrepresentation based on the way they are written.

(Emphasis in the original). Overall did not disclose that he had been denied reinstatement again in October 2015.

         Overall's Character Interview

         In September 2016, Ismail interviewed Overall. At Ismail's request, Overall submitted additional documents, including the judgments of guilt on both his bench trial and the jury trial. At that time, Overall disclosed that he had taken the New York Bar Examination. On September 30, 2016, Ismail issued a memorandum recommending that the Committee hold a hearing before issuing a final recommendation. He identified several concerns regarding Overall's fitness and suggested that those issues merited a hearing before the Committee. Specifically, Ismail explained that:

I was concerned about several items that I felt were not disclosed and/or inadequately disclosed in Mr. Overall's application to the Maryland Bar. I raised these matters with him in our interview, where I did not find his explanations entirely satisfactory.
***
In our interview, I asked Mr. Overall if he believed his answers, aside from the attachments, were sufficient to disclose his Alabama disciplinary proceedings. Mr. Overall responded affirmatively, noting that the list attached to his application referenced all the civil and criminal proceedings to which he was a party, along with the documentation from the disciplinary proceedings. I asked him whether, apart from the attachments, the application itself contained disclosure of the disciplinary proceedings. Mr. Overall eventually acknowledged reluctantly that it did not.
***
In his original application, Mr. Overall did disclose his criminal conviction for resisting arrest, which he described as "pending reversal due to lack of jurisdiction." At our interview, he could not explain this contention in a manner that I could understand. Neither his application nor the attachments included a second judgment of conviction on this charge, after a de novo jury trial. Nor did they include an Alabama Supreme Court denial of his appeal of the disciplinary proceedings. In light of these omissions, I viewed Mr. Overall's disclosure as inadequate. It seemed to me that Mr. Overall does not sufficiently acknowledge the gravity of the Alabama Bar's proceedings against him.
***
Some of Mr. Overall's characterizations of his clashes with the Bar and judiciary in Alabama seem at least plausible to me. Indeed, at least one or two of the clashes appear to have resulted at least in part from matters that arguably reflect no more than zealous advocacy on behalf of his clients.
At the same time, there are numerous other incidents disclosed in Mr. Overall's application and in materials obtained independently from the Alabama State Bar, including Mr. Overall's consent to disciplinary actions, that raise troubling questions about his diligence, candor[, ] and actions that have not been explained adequately to me by Mr. Overall in our interview. Moreover, I felt that his disclosures in his application were inadequate in several respects. Based on the foregoing, I was unable to conclude that Mr. Overall had satisfied his burden of showing that he possesses the necessary good moral character and fitness for the practice of law. . . .

         On October 25, the Chair of the Character Committee for the Sixth Appellate Circuit, Robert Ferguson, sent a letter to Overall notifying him of Ismail's recommendation and explaining that the Committee intended to hold a hearing to determine whether he "presently ...


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