BAILEY v. BOARD OF BAR EXAMINERS

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Supreme Judicial Court of Maine.

F. Lee BAILEY v. BOARD OF BAR EXAMINERS.

Docket No. Cum–13–291.

Decided: April 10, 2014

Panel: SAUFLEY, C.J., and LEVY, MEAD, GORMAN, JABAR and CLIFFORD, JJ. Majority: LEVY, MEAD, GORMAN, and JABAR, JJ. Dissent: SAUFLEY, C.J., and CLIFFORD, J. Janet T. Mills, Attorney General, and Thomas A. Knowlton, Asst. Atty. Gen., Office of the Attorney General, Augusta, on the briefs, for appellant Board Of Bar Examiners. Peter J. DeTroy, Esq., and Devin W. Deane, Esq., Norman, Hanson & DeTroy, LLC, Portland, on the briefs, for appellee F. Lee Bailey. Thomas A. Knowlton, Asst. Atty. Gen., argued, for appellant Board of Bar Examiners. Peter J. DeTroy, Esq., argued, for appellee F. Lee Bailey.

[¶ 1] The Board of Bar Examiners appeals from the judgment of a single justice of the Supreme Judicial Court (Alexander, J.) concluding that applicant F. Lee Bailey presently possesses the requisite good character and fitness required by M. Bar R. 7.3(j)(5) to be admitted to practice law in Maine.

[¶ 2] The Board advances several reasons in support of its position that the single justice erred in authorizing Bailey's admission to the Maine bar.1 Because we conclude that the single justice erred with respect to the Board's principal assertion—that Bailey failed to prove by clear and convincing evidence that he recognizes the wrongfulness and seriousness of the misconduct that resulted in his disbarment—we vacate the judgment on that basis and do not reach the Board's other contentions.

I. BACKGROUND

A. Bailey's Representation of Claude Duboc

[¶ 3] In 1994, Bailey, who had practiced primarily as a criminal-defense attorney for many years, began defending Claude Duboc against charges of drug smuggling and money laundering and related claims for asset forfeiture in the United States District Court for the Northern District of Florida. Bailey was disbarred in Florida in 2001 due to misconduct in connection with his representation of Duboc, and was reciprocally disbarred in the state and federal courts of Massachusetts in 2003 and 2006, respectively. The Florida Supreme Court, in its decision ordering Bailey's disbarment, set out the following factual background based upon the findings of Circuit Judge Cynthia Ellis, who acted as the referee in the disbarment proceedings:

In 1994, Bailey represented Duboc in a criminal case filed against Duboc by the United States alleging violations of Title 21 of the United States Code, which prohibits drug smuggling. The indictment also included forfeiture claims under Title 18 of the United States Code. Bailey worked out a deal with the United States Attorneys (“U.S.Attorneys”) covering Duboc's plea, repatriation of assets, and payment of attorneys' fees. Under the agreement, Duboc would plead guilty and forfeit all of his assets to the United States Government. All of Duboc's cash accounts from around the world would be transferred to an account identified by the U.S. Attorney's Office. To deal with the forfeiture of Duboc's real and personal property, 602,000 shares of Biochem Pharma (“Biochem”) stock, valued at $5,891,352.00, would be transferred into Bailey's Swiss account. Bailey would use these funds to market, maintain and liquidate Duboc's French properties and all other assets․

The ultimate strategy employed by [Bailey] was that Duboc would plead guilty and forfeit all assets to the United States Government in the hopes of a reduction of sentence based on what Bailey described as “extraordinary cooperation.” First, Duboc would identify and transfer all cash accounts from around the world into an account identified by the United States Attorney's Office.

The forfeiture of the real and personal properties held in foreign countries presented some nettlesome problems. Duboc owned two large estates in France and valuable car collections, boats, furnishings and art works. Most of these properties were physically located in France. The two estates required substantial infusions of cash for maintenance.

The idea proposed by Bailey was to segregate an asset, a particular asset, one that would appreciate in value over time, so that when it came time for Duboc to be sentenced following entry of a plea of guilty, the United States Government would not argue in opposition to a defense claim that part of the appreciation in value was not forfeitable to the United States. Ultimately, the object was to sequester a fund which would not be entirely subject to forfeiture.

The identified asset was 602,000 shares of Biochem Pharma Stock. This would serve as a fund from which Bailey could serve as trustee and guardian of Duboc's French properties. Duboc's primary interest was to maximize the amount of forfeitures that would be turned over to the United States. This stock would provide a sufficient fund from which to market, maintain and liquidate the French properties and all other assets. Bailey explained that it would be prudent to hold the Biochem stock because the company was conducting promising research on a cure for AIDS, and the loss the government would suffer if large blocks of stock were dumped on the market.

Money was transferred immediately into a covert account identified by the United States Attorney's Office. Duboc provided written instructions to the various financial institutions and the orders were then faxed. On April 26, 1994, the Biochem stock certificates were transferred to Bailey's Swiss account at his direction. [Bailey] provided the account number.

On May 17, 1994, United States District Court Judge Maurice Paul held a pre-plea conference in his chambers. At the conference, the following arrangement as to attorneys' fees, including those for Bailey, was reached: “The remainder value of the stock which was being segregated out would be returned to the court at the end of the day, and from that asset ․ a motion would be filed for a reasonable attorney's fee for Mr. Bailey.” Later in the day on May 17, Duboc pled guilty to two counts in open court and professed his complete cooperation with the U.S. Attorney's Office.

Florida Bar v. Bailey, 803 So.2d 683, 685–86 (Fla.2001) (per curiam) (quotation marks omitted) (alterations omitted).

[¶ 4] During the course of Bailey's management of Duboc's assets, the market value of the Biochem stock2 increased significantly. After the stock was transferred to Bailey's Credit Suisse account in Switzerland, Bailey sold some shares and borrowed against the remaining shares, deriving over $4 million in proceeds. He then transferred over $3.5 million of the Biochem proceeds from the Credit Suisse account to his personal money market account, and by December 1995 he had transferred all but $350,000 of that amount to his personal checking account. From this personal account, Bailey wrote checks totaling over $2 million to his private businesses and nearly $1.3 million for personal expenses and purchases. Bailey also paid $138,946 from his money market account towards the purchase of a personal residence. Bailey used a substantial portion of the remaining funds to pay the expenses of maintaining and liquidating Duboc's French holdings.

[¶ 5] By late 1995, Duboc had become dissatisfied with Bailey's representation and filed a motion to substitute new counsel for Bailey. Five days before the scheduled hearing, Bailey sent a letter to Judge Paul without copying the prosecutors, Duboc, or Duboc's new attorneys. Bailey's letter referred to Duboc, in quotes, as a “multimillionaire druggie” and alleged, among other things, that Duboc's new attorneys had a conflict of interest and were giving Duboc harmful advice. At the end of the letter, Bailey acknowledged its ex parte nature: “I have sent no copies of this letter to anyone, since I believe its distribution is within Your Honor's sound discretion.”

[¶ 6] Following a hearing, Judge Paul entered an order on January 12, 1996, removing Bailey as Duboc's counsel. The order also froze all of Duboc's assets held by Bailey and required Bailey to submit a complete accounting of Duboc's money and property that he held in trust. Despite his knowledge of the January 12 order, Bailey thereafter spent over $300,000 of the Biochem proceeds for his own purposes. Judge Paul issued a second order on January 25, 1996, mandating that Bailey surrender all of the shares of the Biochem stock or any replacement assets, and prepare a full accounting of the assets he received from Duboc, including any disbursements he made from those assets. Bailey then notified the Swiss government that the Biochem shares and proceeds in his Swiss bank account were the fruits of drug trafficking, which resulted in the Swiss authorities freezing the account. As a result, Bailey did not surrender the stock or proceeds as he was required to do. Judge Paul subsequently scheduled a hearing to determine if Bailey should be held in contempt.

[¶ 7] At the contempt hearing held on February 2, 1996, Bailey testified under oath that he did not physically see the January 12 and January 25 orders until that very morning. Judge Paul held Bailey in contempt for violation of the orders, and ordered his incarceration until he could purge himself of contempt by producing the requested accountings and the stock, and repaying to the court the amount he had withdrawn. When Judge Paul determined that he had substantially complied with the court's contempt order, Bailey was released from incarceration after forty-four days.

[¶ 8] Ultimately, Judge Paul approved $1.2 million of the approximately $1.6 million in expenditures Bailey claimed to have made to manage Duboc's assets. Because Bailey had already spent more than the approved expenses, he was ordered to pay an additional $423,737 to the court. The court also ordered Bailey to return the sum that he had withdrawn from the Swiss account and spent for personal purposes. On appeal, the United States Court of Appeals for the Eleventh Circuit rejected Bailey's contention that Judge Paul was biased against him and should have been recused, and affirmed the court's allowance of expenses with one minor exception. United States v. Bailey, 175 F.3d 966, 968–70 (11th Cir.1999) (per curiam).

B. Bailey's Disbarment

[¶ 9] In July 2000, after a five-day hearing on the Florida Bar's petition for Bailey's disbarment, Judge Ellis found that Bailey had committed various ethical violations, including misappropriation of client assets and commingling them with personal assets, ex parte communication, self-dealing, conflict of interest, and false testimony under oath. Judge Ellis rejected Bailey's argument that because the Biochem stock was transferred to him in “fee simple absolute,” he was entitled to treat the stock and its appreciation as his own. In arriving at a proposed sanction, Judge Ellis noted that Bailey was sixty-seven years old at the time of the misconduct and had been practicing law for many years. She applied the aggravating factors of substantial experience in the practice of law, selfish motive, pattern of misconduct, multiple offenses, and refusal to acknowledge the wrongful nature of his misconduct. Emphasizing the egregiousness of Bailey's ethical violations and the aggravating factors, Judge Ellis recommended that Bailey be permanently disbarred.

[¶ 10] On appeal, the Florida Supreme Court upheld all of Judge Ellis's findings and conclusions regarding the six counts of ethical violations, noting that Bailey had “committed some of the most egregious rules violations possible.” Florida Bar, 803 So.2d at 690, 694. The court ordered Bailey disbarred with eligibility to apply for readmission after a period of five years. Id. at 695. Bailey appealed to the United States Supreme Court, which denied certiorari. Bailey v. Florida Bar, 535 U.S. 1056, 122 S.Ct. 1916, 152 L.Ed.2d 825 (2002). Subsequently, Bailey was reciprocally disbarred in both the state and federal courts of Massachusetts.3

[¶ 11] After Bailey's disbarment in Florida, the Biochem stock continued to be a subject of dispute. In 2002, the United States Court of Federal Claims rejected a claim Bailey brought against the United States in which he contended that the government had breached an implied-in-fact contract to transfer the stock to him in fee simple absolute. Bailey v. United States, 54 Fed.Cl. 459, 485–87 (2002), aff'd, Bailey v. United States, 94 F. App'x. 828 (Fed.Cir.2004). In January 2013, the United States Tax Court determined that Bailey owed taxes and penalties in the amount of $1.9 million, not including statutory interest, resulting in part from his failure to report as income a portion of the Biochem proceeds that he had treated as his own. Bailey v. Comm'r, No. 3080–08 (T.C. Jan. 11, 2013); Bailey v. Comm'r, No. 3081–08 (T.C. Jan. 11, 2013); Bailey v. Comm'r, 103 T.C.M. (CCH) 1499, 2012 WL 1082928, at *22 (T.C. Apr. 2, 2012). In July 2013, the Internal Revenue Service (IRS) filed tax liens against Bailey in the approximate sum of $4.5 million, which included statutory interest on Bailey's tax liability.4 Bailey appealed the Tax Court's decision, and the United States Court of Appeals for the First Circuit affirmed. Bailey v. Internal Revenue Serv., No. 13–1455 (1st Cir. Mar. 14, 2014).

C. Bailey's Application to the Maine Bar

[¶ 12] In February 2012, ten years after his disbarment in Florida, Bailey applied for admission to practice law in Maine and passed the Maine bar exam. In November 2012, following a testimonial hearing, the Board of Bar Examiners concluded in a five-to-four decision that Bailey had failed to meet his burden of proving, by clear and convincing evidence, that he presently possesses the requisite good character and fitness for admission to the Maine bar. See M. Bar R. 7.3(j)(5). The Board found, among other things, that Bailey did not recognize the wrongfulness and seriousness of his prior misconduct that led to his disbarment, that he continued to dispute the Florida Supreme Court's findings regarding his misconduct, and that he continued to challenge the legitimacy of the judicial process that resulted in his disbarment.

[¶ 13] Bailey appealed the Board's decision pursuant to M. Bar Admission R. 9(d)(6), and the single justice held a de novo hearing on March 6 and 7, 2013. In April 2013, the single justice entered a judgment concluding that Bailey had met his burden of proving the requisite good character and fitness in all but one respect—his large outstanding tax obligation. The single justice specifically found that Bailey recognizes the wrongfulness and seriousness of the misconduct that led to his disbarment but denied Bailey's petition for a certificate of good character and fitness based on the tax liability alone. The single justice invited the parties to submit motions for reconsideration to address this issue, explaining:

[T]he existence of large debts can compromise professional judgment and client relations in ways that must be recognized in considering admission applications. The issue of an outstanding, though not final, judgment ordering payment of nearly $2 million must be addressed in consideration of a bar admission. This issue remaining unaddressed is the only bar to this Court's granting Bailey a certificate of good character and fitness to be admitted to the practice of law.

Bailey has the burden to prove, by clear and convincing evidence, good character and fitness to practice law. With the tax debt issue unresolved, and not seriously addressed at hearing or in the written closing arguments, the Court cannot find present fitness to practice proven by clear and convincing evidence. Accordingly, the Court must deny the petition to grant an unconditional admission and issue a certificate of good character and fitness to practice law. For the present, this denial will be without prejudice to a timely request for reconsideration addressing how, if at all, the Court should treat the obligations indicated in the January 11, 2013, Tax Court orders in reaching its decision on good character and fitness.

[¶ 14] Bailey subsequently filed a motion for reconsideration. In June 2013, after a hearing, the single justice issued a judgment finding that Bailey, by actively litigating and seeking to resolve the tax debt, “is making a genuine effort to meet his responsibilities” and had therefore met his burden of proof on this last issue bearing on his character and fitness. The single justice remanded the case to the Board with instructions to issue Bailey a certificate of qualification.

[¶ 15] The Board filed a motion for further findings and for reconsideration, arguing that the single justice failed to consider evidence bearing negatively on Bailey's character and fitness. The single justice denied the Board's motion, and this appeal followed.

II. DISCUSSION

[¶ 16] Maine Bar Rule 7.3(j) governs the admission of attorneys who have been disbarred. Pursuant to Maine Bar Rule 7.3(j)(5), Bailey bore the burden of presenting “clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law” in Maine, as well as evidence establishing that “it is likely that [his admission] will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.” See also In re Williams, 2010 ME 121, ¶ 6, 8 A.3d 666 (citing M. Bar R. 7 .3(j)(5)); In re Hughes, 594 A.2d 1098, 1100–01 (Me.1991).5 To determine whether Bailey met this burden, the single justice was required to evaluate whether Bailey demonstrated, among other requirements, that he “recognizes the wrongfulness and seriousness of the misconduct” leading to his disbarment. M. Bar R. 7.3(j)(5)(C).6 This requirement presents a mixed question of law and fact. See Bd. of Overseers of the Bar v. Warren, 2011 ME 124, ¶ 25, 34 A.3d 1103 (“We interpret the meaning of the [bar] rules de novo as a matter of law, and review for clear error the findings of fact that determine the applicability of the rule.” (citations omitted)).

[¶ 17] The Board asserts that the evidentiary record shows that the single justice's finding that Bailey recognizes the wrongfulness and seriousness of his misconduct is clearly erroneous, and that, as a matter of law, Bailey failed to prove this factor because he only admitted to some, but not all, of the misconduct found by the Florida Supreme Court. We interpret the meaning of Rule 7.3(j)(5) de novo as a matter of law and review for clear error the single justice's findings of fact. Warren, 2011 ME 124, ¶ 25, 34 A.3d 1103. When reviewing on appeal findings of fact that must be proved by clear and convincing evidence, we determine “whether the factfinder could reasonably have been persuaded that the required factual finding was or was not proved to be highly probable.” Taylor v. Comm'r of Mental Health & Mental Retardation, 481 A.2d 139, 153 (Me.1984).

A. Maine Bar Rule 7.3(j)(5)(C)'s Standard for Recognition of the Wrongfulness and Seriousness of Prior Misconduct

[¶ 18] We begin by examining the meaning of the phrase “recognizes the wrongfulness and seriousness of the misconduct” as used in Rule 7.3(j)(5)(C), considering (1) the meaning of the term “recognize” as employed in the Rule, and (2) whether, as the Board contends, the Rule required Bailey to demonstrate that he is fully repentant and unambiguously accepts the wrongfulness and seriousness of all of his misconduct.

1. The Meaning of the Term “Recognize” as Employed in Rule 7.3G)(5)(C)

[¶ 19] The underlying purpose of Rule 7.3(j)(5)(C)'s requirement that a previously disbarred applicant “recognizes the wrongfulness and seriousness of the misconduct” is to ensure that the applicant's readmission “will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.” M. Bar R. 7.3(j)(5). Because the purpose of the Rule centers on the protection of the public, its standard is directed at whether the disbarred applicant has been sufficiently rehabilitated to be trusted with the responsibilities of an attorney. See In re Wigoda, 77 Ill.2d 154, 32 Ill.Dec. 341, 395 N.E.2d 571, 574 (Ill.1979) (“Rehabilitation, the most important consideration in reinstatement proceedings, is a matter of one's return to a beneficial, constructive and trustworthy role.” (quotation marks omitted)). Consistent with Rule 7.3(j)(5)'s purpose of protecting the public, we construe the term “recognize” to mean that the applicant must demonstrate that he or she (1) sincerely believes that the prior misconduct, as ultimately determined by the tribunal that imposed the discipline, was wrong and serious, and (2) is capable of identifying similar conduct as wrongful in the future if he or she were to engage in the active practice of law.

2. Whether M. Bar R. 7.3(j)(5)(C) Required Bailey to Prove That He Unambiguously Accepts the Wrongfulness and Seriousness of His Misconduct

[¶ 20] Having construed the term “recognize,” we turn to the Board's argument that Rule 7.3(j)(5)(C) requires proof of nothing less than Bailey's unambiguous acceptance of all findings of misconduct that the Florida Supreme Court found. We find this contention unpersuasive.

[¶ 21] Neither the language of the rule nor its purpose requires that an applicant demonstrate his complete and unambiguous acceptance of all of the findings of wrongdoing in order to establish his good character and fitness. See M.Bar R. 7.3(j)(5); see also In re Williams, 2010 ME 121, ¶ 10, 8 A.3d 666 (finding that an applicant failed to recognize the wrongfulness and seriousness of his misconduct because he “ignore[d] or minimize[d] the actual misconduct that led to his disbarment”). An applicant's good faith and reasoned dispute with one or more of a tribunal's findings that formed the basis of his disbarment does not preclude the possibility that the applicant sincerely believes that the misconduct, as ultimately determined by the tribunal, was wrong and serious. An applicant could, in good faith, dispute one or more of a tribunal's findings while nonetheless demonstrating respect for the process that was employed and acceptance of the tribunal's conclusions.

[¶ 22] Other courts have recognized that an applicant's failure to be fully repentant does not preclude a determination that the applicant has been rehabilitated. See, e.g., In re Sabo, 49 A.3d 1219, 1228 (D.C.Cir.2012) ( “[A] confession of guilt is not required for a petitioner seeking reinstatement to show that he recognizes the seriousness of his misconduct ․“ (quotation marks omitted) (alteration omitted)); In re Mitchell, 249 Ga. 280, 290 S.E.2d 426, 427 (Ga.1982) (“[C]ontinued assertion of innocence following conviction is not conclusive proof of lack of rehabilitation.”); In re Wigoda, 32 Ill.Dec. 341, 395 N.E.2d at 573–74 (distinguishing repentance from rehabilitation); In re Hiss, 333 N.E.2d at 437 (“[W]e refuse to disqualify a petitioner for reinstatement solely because he continues to protest his innocence of the crime of which he was convicted.”); In re Page, 94 P.3d 80, 83 (Okla.2004) (“[A]n applicant's assertion of innocence, standing alone, is not a bar to reinstatement․”); In re Walgren, 104 Wash.2d 557, 708 P.2d 380, 384 (Wash.1985) (en banc) (“The continued assertion by [the applicant] of his innocence does not reflect negatively on our assessment of his rehabilitation.”).

[¶ 23] Accordingly, that Bailey does not unambiguously accept all of the findings and conclusions of the Florida Supreme Court is not conclusive as to whether he sincerely believes that his misconduct was wrong and serious and whether he is capable of identifying similar conduct as such in the future as a practicing attorney. Common sense dictates, however, that the nature and extent of his failure to be fully repentant should be carefully considered when determining his fitness to practice law. See, e.g ., In re Walgren, 708 P.2d at 384–85 (contrasting an applicant who maintained that he was wrongly convicted but who nonetheless “accepts the verdict as the law” and “accepts and respects the system which found him guilty of his acts” with one who blamed his misconduct on “bad judgment”). An applicant's attempt to minimize the wrongfulness and seriousness of his or her misconduct, as found by the presiding tribunal, casts doubt on whether the applicant believes the misconduct was wrong or serious. See In re Williams, 2010 ME 121, ¶ 10, 8 A.3d 666 (finding that an applicant failed to recognize the wrongfulness and seriousness of his misconduct because he “ignore[d] or minimize[d] the actual misconduct that led to his disbarment”); see also In re Sabo, 49 A.3d at 1225 (“If a petitioner does not acknowledge the seriousness of his or her misconduct, it is difficult to be confident that similar misconduct will not occur in the future.” (quotation marks omitted)); In re Silva, 29 A.3d 924, 943 (D.C.Cir.2011) (finding that the applicant's acceptance of the seriousness of his misconduct “rings hollow” in part because “that acknowledgement is tempered by efforts to minimize the harm”); In re Holker, 765 N.W.2d 633, 638 (Minn.2009) (finding that an attorney did not demonstrate sufficient moral change when he “minimized several aspects of his misconduct, emphasizing that this was only one case out of thousands”).

[¶ 24] We conclude, contrary to the Board's position, that the fact that Bailey is not fully repentant and does not unambiguously admit to all of the misconduct for which he was disbarred does not, standing alone, preclude a finding that he has satisfied Rule 7.3(j)(5)(C)'s requirement.

B. Whether the Finding that Bailey Recognizes the Wrongfulness and Seriousness of His Misconduct is Supported by Clear and Convincing Evidence

[¶ 25] To determine whether an applicant recognizes the wrongfulness and seriousness of his misconduct, a court must necessarily examine the specific misconduct the applicant committed. The Florida Supreme Court, in adopting Judge Ellis's findings regarding the six counts of ethical violations, found that Bailey had “committed some of the most egregious rules violations possible, evidencing a complete disregard for the rules governing attorneys”:

Misuse of client funds is one of the most serious offenses a lawyer can commit․ Bailey's false testimony and disregard of Judge Paul's orders demonstrate a disturbing lack of respect for the justice system and how it operates. Bailey's self-dealing and willingness to compromise client confidences are especially disturbing. Not only did Bailey use assets that his client intended to forfeit to the U.S. Government for Bailey's own purposes, but Bailey also attempted to further his own interests by disparaging his client in an ex parte letter to the judge who would sentence his client. Bailey's self-dealing constitutes a complete abdication of his duty of loyalty to his client. His willingness to compromise his client for personal gain shows an open disregard for the relationship that must be maintained between attorney and client: one of trust, and one where both individuals work in the client's best interest. Such misconduct strikes at the very center of the professional ethic of an attorney and cannot be tolerated.

Florida Bar, 803 So.2d at 694 (quotation marks omitted) (alteration omitted).

[¶ 26] The single justice concluded that Bailey had established that he recognizes the wrongfulness and seriousness of the above misconduct, finding:

[Bailey] testified to this [recognition] at several points, perhaps more unequivocally than in his similar testimony before the Board of Bar Examiners. Particularly, the Court finds that Bailey recognizes that his ex-parte contacts with Judge Paul were wrong, as was his poor recordkeeping, comingling of client and personal funds, and failure to have an explicit written agreement with the Department of Justice lawyers regarding the uses of the Biochem stock and its proceeds that were transferred to him in trust.

In reviewing this determination, we defer to the single justice's credibility determinations. See Dyer v. Superintendent of Ins., 2013 ME 61, ¶ 12, 69 A.3d 416 (“No principle of appellate review is better established than the principle that credibility determinations are left to the sound judgment of the trier of fact.” (quotation marks omitted)). We further infer that the single justice would have found all additional facts necessary to support the judgment if those inferred findings are supported by the evidence in the record.7 See Pelletier v. Pelletier, 2012 ME 15, ¶ 20, 36 A.3d 903. We therefore consider whether competent evidence supports the court's explicit and inferred findings, to the standard of clear and convincing evidence, in relation to the specific acts of misconduct for which Bailey was disbarred.

1. Counts I and II: Commingling Related to Duboc's “Japanese Stock”; Misappropriating Trust Funds and Commingling Related to Duboc's Biochem Stock Proceeds

[¶ 27] We consider together the first two counts of ethical violations relating to Bailey's commingling of client assets with his own and his misappropriation of the Biochem proceeds. Regarding Count I, the Florida Supreme Court adopted Judge Ellis's finding that Bailey, entrusted with the liquidation of Duboc's so-called “Japanese stock,” commingled $730,000 of the stock's sale proceeds with his own funds for six weeks before turning the money over to the government.8 Florida Bar, 803 So.2d at 686–87, 690. The Florida Supreme Court rejected Bailey's contention that he did not have any personal funds in his account and had inadvertently deposited the stock proceeds into this account. Id.

[¶ 28] Regarding Count II, the Florida Supreme Court adopted Judge Ellis's finding that Bailey commingled and misappropriated over $3 million of the proceeds from Duboc's Biochem shares, and rejected Bailey's arguments that the stock was transferred to him in fee simple absolute and that he properly treated it as his own property.9 Id. at 687, 690–94. The court emphasized that, because the stock was given to Bailey for the benefit of Duboc and, ultimately, the federal government, regardless of the manner in which Bailey held the stock, he was “guilty of the most serious and basic trust account violations” by commingling and treating the stock and its appreciation as his own property. Id. at 691. We address Bailey's commingling and misappropriation of proceeds separately.

a. Commingling

[¶ 29] Bailey admitted to commingling “on one occasion” when he was questioned before the Board about the Biochem stock.10 Bailey did not testify or introduce other evidence regarding the commingling of the Japanese stock proceeds either before the Board or the single justice.

[¶ 30] With regard to the Japanese stock, because Bailey had the burden of production on this issue and there is no evidence in the record from which the court could have found that Bailey recognizes the wrongfulness and seriousness of having commingled the proceeds from Duboc's Japanese stock, we will not infer that the court found that Bailey recognizes the wrongfulness and seriousness of that transgression.

[¶ 31] Likewise, the evidence in the record does not support the conclusion that it is highly probable that Bailey recognizes the wrongfulness and seriousness of having commingled the proceeds from Duboc's Biochem stock, as required by the clear and convincing evidence burden of proof. As the Florida Supreme Court noted, “one of the most solemn obligations that separate lawyers from any other professionals relates to the safeguarding and segregation of a client's property.” Florida Bar, 803 So.2d at 693. By commingling client assets, Bailey was “guilty of the most serious and basic trust account violations.” Id. at 691. While Bailey's testimony before the Board that he “did on one occasion commingle” acknowledged the fact that he committed the misconduct, he offered no other testimony that sheds light on whether he believes that this “most serious and basic trust account violation” was indeed seriously wrong. On this record, we conclude that the fact-finder could not reasonably have been persuaded that the required factual finding—that Bailey recognizes the wrongfulness and seriousness of having commingled the proceeds from Duboc's Biochem stock—was proved to be highly probable, as required by the clear and convincing evidence standard. See Taylor, 481 A.2d at 153.

b. Misappropriation of the Biochem proceeds

[¶ 32] At the hearing before the single justice, Bailey admitted to spending approximately $3 million of the Biochem proceeds for his own use, and testified that if the appreciation in the value of the Biochem stock ever belonged to him, as he claimed, “I lost it through my own negligence and perhaps substandard conduct.” Bailey minimized the seriousness of this misconduct, however, by explaining that he spent no more than the appreciated value of the stock, which had risen from $5.9 million at the time of the original transfer to over $10 million by January 1996.11 Bailey further testified before the single justice that he believed that Judge Paul may have implicitly approved some of his personal use of the Biochem proceeds.12 Bailey adheres to the view that it was reasonable to believe that he was entitled to use the stock to pay himself the attorney fees he believed he was owed, and to treat the appreciated value of the Biochem stock as his own, because the parties had agreed to transfer the stock to him in “fee simple and without restriction.”13 Bailey's view contradicts what was determined in the Florida disbarment proceeding. See Florida Bar, 803 So.2d at 690–91 (rejecting Bailey's assertion that he never held the stock in trust for Duboc or the United States because it was transferred to him in fee simple absolute, and concluding that, “regardless of the manner in which he was to hold the stock, Bailey is guilty of the most serious and basic trust account violations.”).

[¶ 33] Consistent with his continued claim that the stock belonged to him in fee simple, Bailey repeated before the single justice his position that he had not “misappropriated” the Biochem funds,14 which was one of the specific ethical violations that the Florida Supreme Court found that Bailey committed. See Florida Bar, 803 So.2d at 687, 690. Bailey then explained that a portion of the withdrawn Biochem funds was for his attorney fees and that, even though he never applied to Judge Paul for approval of his fees, the judge had implicitly approved this arrangement.15 This argument was also rejected in the Florida Bar proceeding. Id. at 692 (stating that even if some of the corpus of the initial Biochem stock was to be used for payment of attorney fees, “Bailey was not entitled to the fee until it was approved by Judge Paul—a fact that Bailey admits in his January 21 letter to Judge Paul, and that he admits in this case.”).

[¶ 34] Lastly, when asked about the mistakes he made, Bailey stated that his mistake was his failure to recognize that the handling of the stock was “riddled with conflicts” and that “the United States Attorney didn't have the authority to make that deal as was ultimately ruled in the Court of Claims.”16 Bailey's professed understanding of these mistakes minimizes the wrongfulness and seriousness of the actual misconduct for which he was disbarred: misappropriating his client's property.

[¶ 35] In short, Bailey continues to dispute that he misappropriated over $3 million of his client's property and the key predicate facts supporting that finding. The evidence in the record does not support the conclusion that it is highly probable that Bailey recognizes the wrongfulness and seriousness of his misappropriation of the Biochem stock proceeds, as required by the clear and convincing evidence burden of proof.

2. Count III: Violations of Two Federal Court Orders

[¶ 36] The Florida Supreme Court adopted Judge Ellis's finding that Bailey willfully violated Judge Paul's two orders issued in January 1996: first, by spending over $300,000 from the Biochem proceeds he held in trust despite Judge Paul's January 12 order freezing the funds; and second, by failing to surrender the Biochem shares and stock proceeds to the court despite the January 25 order requiring him to do so.17 Florida Bar, 803 So.2d at 687–88, 690, 693–94.

[¶ 37] At the hearing before the single justice, Bailey admitted to spending an additional $300,000 for personal purposes after the January 12 order was issued. However, he maintained that his violation of the order was unintentional because he mistakenly assumed that the January 25 order superseded the January 12 order.18 There is simply no language, however, in either order that would justify a reasonable attorney—particularly an attorney who claims not to have personally read either order prior to February 2, 1996—in assuming that the January 25 order superseded the provision in the January 12 order freezing Duboc's assets in Bailey's possession. Although Bailey recognized that his decision to treat the January 25 order as superseding the January 12 order was “not good lawyering” and “a selfish position to take,” he further testified that he did not violate the January 12 order “[u]nless you view [the January 12 and 25 orders] as running in parallel.” This justification was squarely rejected in the Florida disbarment proceeding and minimizes the wrongfulness and seriousness of Bailey's misconduct in, among other things, “knowingly disobey[ing] an obligation under the rules of a tribunal.” Florida Bar, 803 So.2d at 687–88.

[¶ 38] In addition, although Bailey admitted to the single justice that he violated the January 25 order, he continued to disavow responsibility for having arranged for the notice to the Swiss government that caused it to freeze Bailey's account.19

[¶ 39] Based on Bailey's testimony, it is not possible to conclude that it is highly probable that he recognizes the wrongfulness and seriousness of his violation of Judge Paul's orders, as required by the clear and convincing evidence burden of proof.

3. Count IV: False Testimony

[140] The Florida Supreme Court adopted Judge Ellis's finding that Bailey testified falsely before Judge Paul, and again in the Florida bar hearing, that he did not see either the January 12 or the January 25 order until the morning of the civil contempt hearing held on February 2, 1996.20 Florida Bar, 803 So.2d at 688, 690.

[¶ 41] In his testimony before the single justice, Bailey again asserted that he did not see or read the January 12 and January 25 orders until the morning of the contempt hearing.21 Bailey also testified, however, that he was to some degree aware of the contents of the orders because his associate had read them to him over the phone. Relying on this distinction, Bailey maintained that his testimony before Judge Paul that he had not physically seen the orders at the time he violated them was not false.22

[¶ 42] In sum, Bailey continued to dispute that he testified falsely before Judge Paul and Judge Ellis as the Florida Supreme Court had found. Based on Bailey's testimony, it is not possible to conclude that it is highly probable that Bailey recognizes the wrongfulness and seriousness of his false testimony, as required by the clear and convincing evidence burden of proof.

4. Count V: Self–Dealing in the Representation of Duboc

[¶ 43] The Florida Supreme Court adopted Judge Ellis's finding that Bailey engaged in two instances of self-dealing in his representation of Duboc.23 Florida Bar, 803 So.2d at 688–689, 690. First, Bailey claimed ownership of the Biochem stock that belonged to Duboc and which Duboc planned to forfeit to the federal government in order to receive favorable treatment at sentencing. Id. at 688. Second, Bailey procrastinated in selling Duboc's estates in France. Id. at 688–89.

[¶ 44] On the first point, as noted above, although Bailey explained to the single justice that he failed to recognize that his acceptance of the Biochem stock was “riddled with conflicts,”24 he did not acknowledge the detriment that his treatment of the stock had to his client's interests. Rather, Bailey only expressed regret for not clarifying who would be entitled to the stock's appreciation, and for not accepting his fees in cash and selling the stock quickly.25

[¶ 45] On the second point, Bailey contended before the single justice that Judge Ellis had erred in finding that he had procrastinated in selling Duboc's estates to prolong his personal use of the properties; rather, he explained that he delayed selling the properties in order to garner a better price for them.26

[¶ 46] Bailey's present view of his actions minimizes the wrongfulness and seriousness of his self-dealing as determined in the Florida Bar proceeding. Based on Bailey's testimony, it is not possible to conclude that it is highly probable that he recognizes the wrongfulness and seriousness of this misconduct, as required by the clear and convincing evidence burden of proof.

5. Count VII: Ex Parte Communications, Self–Dealing, and Disclosure of Confidential Information

[¶ 47] The Florida Supreme Court adopted Judge Ellis's finding that Bailey sent an ex parte letter to Judge Paul in which he stated that Duboc had pleaded guilty because he had no defense due to the strength of the case, referred to Duboc as a “multimillionaire druggie,” alleged that Duboc, by consulting with other attorneys, was no longer acting in a spirit of cooperation, and disparaged Duboc's new counsel. Florida Bar, 803 So.2d at 689, 690.27 Judge Ellis also found that Bailey then sent a second letter to Judge Paul, this time copying the U.S. Attorney's Office, threatening to seek an order waiving attorney-client privilege, thereby compromising Duboc's interests in order to protect his own. Id. at 689.

[¶ 48] At the hearing before the single justice, Bailey admitted to sending the ex parte letter to Judge Paul. He admitted that his ex parte communication constituted “unethical conduct” and a “knee-jerk reaction,” and expressed regret in writing the letter without having consulted another attorney.28 He, however, minimized the seriousness of the violation by contending that he sent the letter in an attempt to “alert [Judge Paul] to a serious condition which [Bailey] planned to tell him might involve an attempt to bribe him” for $1 million.29 Although the ex parte letter to Judge Paul did not mention that Duboc or his new attorneys might attempt to bribe the judge, Bailey maintained that his use of the words “seclusion” and “clear watershed” would suggest to Judge Paul-had he read the letter-that “something improper is in the wind.”30

[¶ 49] Before the single justice, Bailey also denied having disparaged Duboc in his letter to Judge Paul, testifying that he had put the phrase “multimillionaire druggie” in quotes to denote that he only repeated what other attorneys had called Duboc.31 Bailey further denied that the letter revealed to Judge Paul that Duboc had violated the plea agreement or that it breached confidentiality and attorney-client privilege,32 explaining that the government knew and had disclosed to Bailey the information alleged in the letter.33 These explanations minimize the wrongfulness and seriousness of the misconduct of self-dealing and disclosure of confidential client information.

[¶ 50] Although different conclusions may be drawn from Bailey's testimony regarding the letter, the single justice's finding that Bailey recognized the wrongfulness and seriousness of having sent an ex parte letter to Judge Paul is supported by competent evidence in the record. The evidence, however, does not support the conclusion that it is highly probable that Bailey recognizes the wrongfulness and seriousness of his self-dealing and disclosure of confidential client information, as required by the clear and convincing evidence burden of proof.

6. Additional Testimony by Bailey Regarding the Wrongfulness and Seriousness of His Misconduct

[¶ 51] Bailey testified that although he believed, in retrospect, that the Florida Supreme Court had “some grounds ․ that warranted disbarment,” he believed that his disbarment was “kind of harsh.”34 He also testified before the Board and the single justice to his continued belief that the bias and animus of others contributed to his disbarment and related setbacks. He testified that the Department of Justice engaged in “obstructive efforts” to “engineer[ ]” his disbarment; that Judge Ellis was “hostile” toward him; that Judge Paul had developed “distaste” for him; that the Department of Justice obstructed the renomination of Judge Horn to the U.S. Court of Federal Claims “in the hope that she would get the message” to rule against him in the civil complaint he had brought against the federal government in the U.S. Court of Federal Claims; and that the tax agent who investigated Bailey's failure to report income associated with the Biochem proceeds improperly altered his investigative records. Bailey also acknowledged that he filed a pleading with the Tax Court in which he alleged that the Florida Bar, the Department of Justice, and the IRS had conspired to violate his constitutional rights.35 Accordingly, in his testimony, Bailey questioned the integrity of almost all of the legal proceedings related to his misappropriation of Duboc's Biochem stock. This lack of respect for the judicial process casts further doubt on whether he believes his misconduct was wrong or serious.36 See Bd. of Overseers of the Bar v. Campbell, 663 A.2d 11, 13 (Me.1995) (“The efficient and orderly administration of justice cannot be successfully carried on if we allow attorneys to engage in unwarranted attacks on the court, opposing counsel or the jury․ Turbulent, intemperate or irresponsible behavior is a proper basis for the denial of admission to the bar.” (quoting In re Feingold, 296 A.2d 492, 500 (Me.1972))).

7. Testimony By Other Witnesses Bearing on Whether Bailey Recognizes the Wrongfulness and Seriousness of the Misconduct

[¶ 52] Before the single justice, multiple witnesses testified to Bailey's love of the law, the devastating effect that disbarment has had on him, and his regret and reformation since disbarment. For example, witnesses testified that Bailey “had lost something he deeply loved and was going through a lot of pain”; that the Duboc case was Bailey's “one regret” and he was “very sorry for what had happened”; that since his disbarment Bailey has become “a new man,” “far more humble,” and “much more measured”; that Bailey is actively involved in business and community activities in Maine and elsewhere; and that it was clear that Bailey has recognized his mistakes in the Duboc matter and those mistakes would not be repeated. In particular, Judge Kenneth Fishman of the Superior Court of Massachusetts testified that Bailey's conduct in his representation of Duboc was an “aberration”:

I think Lee recognizes this as well—that he made some serious mistakes with regard to that case and have lapses of judgment, good judgment in that regard.

But as I've described it before, when you compare what happened in that case with a long distinguished career as a criminal defense attorney, I feel that DuBoc was an aberration. It was not indicative of the kind of man or attorney that he is.

[¶ 53] Witnesses further testified as to the personal difficulty that Bailey faced during the period leading to his disbarment—Bailey was handling too many high-profile cases at once and was constantly traveling; his wife had fallen ill in 1998 and passed away in 1999; and her death caused him great personal suffering.37

[¶ 54] Bailey's character witnesses testified to their strong beliefs that Bailey regrets the mistakes he made in defending Duboc and that he has suffered profoundly negative personal and professional consequences as a result of his disbarment. Their testimony also demonstrates the high regard in which Bailey is held by many of his professional peers, friends, and business associates, and underscores his advanced skills as a legal advocate. As the California Supreme Court recently recognized, however, “the testimony of character witnesses will not suffice by itself to establish [an applicant's] rehabilitation.” In re Glass, 58 Cal.4th 500, 525, 167 Cal.Rptr.3d 87, 316 P.3d 1199 (Cal.2014). Here, the character witnesses' testimony does not support the conclusion that it is highly probable that Bailey recognizes the wrongfulness and seriousness of his misconduct to the extent that Bailey's testimony suggests otherwise.38

C. Conclusion

[¶ 55] The clear and convincing standard is applied where “a higher than ordinary degree of certitude” is required to achieve the applicable public policy. Taylor v. Comm'r of Mental Health & Mental Retardation, 481 A.2d 139, 149 (Me.1984). We apply this heightened burden of proof in deciding whether to readmit previously disbarred applicants because “we are required specifically to determine that [such] reinstatement will not be detrimental to the public interest.” In re Hughes, 594 A.2d 1098, 1101 (Me.1991). Further, “the policies that motivated the imposition of the clear and convincing evidence standard apply with equal force at both the factfinding and appellate stages.” Taylor, 481 A.2d at 153 (quotation marks omitted).

[¶ 56] Viewing Bailey's actions as identified in the six counts of misconduct, we conclude that Bailey met his burden of proof by clear and convincing evidence only with respect to the question of whether he recognizes the wrongfulness and seriousness of having sent an ex parte communication to Judge Paul (Count VII). As to the remaining misconduct, the evidence in the record does not support the conclusion that it is highly probable that Bailey recognizes the wrongfulness and seriousness of commingling the Japanese stock (Count I), commingling and misappropriating the Biochem stock (Count II), violating two federal court orders (Count III), false testimony (Count IV), self-dealing in his treatment of the Biochem stock (Count V), and self-dealing and disclosure of confidential client information (Count VII). By continuing to question many of the findings and conclusions reached by the Florida Supreme Court, and by suggesting that Judge Ellis and the other judges who presided in his cases were biased and that the Florida proceedings were the product of a conspiracy to deprive him of his constitutional rights, Bailey minimizes the wrongfulness and seriousness of the misconduct for which he was disbarred.

[¶ 57] As previously discussed, an applicant is not required to demonstrate that he or she completely and unambiguously accepts all of the findings of misconduct to satisfy the requirement of M. Bar R. 7.3(j)(5)(C). Here, however, Bailey failed to demonstrate that he is sufficiently rehabilitated by proving that it is highly probable that he recognizes the wrongfulness and seriousness of most of the misconduct he committed. Considered as a whole, the record evidence was insufficient to prove, by clear and convincing evidence, that Bailey recognizes the wrongfulness and seriousness of his misconduct. Accordingly, the single justice erred by reaching the opposite conclusion and, consequently, by ultimately concluding that Bailey's “reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or the public interest.” See M. Bar R. 7.3(j)(5).

The entry is:

Judgment vacated. Remanded for entry of a judgment affirming the order of the Board of Bar Examiners.

[158] Because the Court has acted outside its appellate function in vacating the factual findings of the single justice who heard the evidence in this matter, and because we would instead remand this matter on the single issue of F. Lee Bailey's plan for avoiding violations of the Maine Bar Rules while responsible for a significant federal tax obligation, we respectfully dissent.

I. LEGAL FRAMEWORK

[¶ 59] We have no quarrel with the Court's well-crafted analysis of the applicant's burden of proof and the Court's standard of review on appeal. As the Court properly observed, it was Bailey's “burden to present ‘clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State,’ “ and to establish that “ ‘reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.’ “ In re Williams, 2010 ME 121, ¶ 6, 8 A.3d 666 (quoting M. Bar R. 7.3(j)(5)).39 On appeal, we review the factual findings of the single justice reached by clear and convincing evidence for clear error to determine whether the justice, based on the evidence and any reasonable inferences that may be drawn from that evidence,40 “could reasonably have been persuaded that the required findings were proved to be highly probable.” Me. Eye Care Assocs. P.A. v. Gorman, 2008 ME 36, ¶ 12, 942 A.2d 707 (quotation marks omitted); see In re Hughes, 608 A.2d 1220, 1220 (Me.1992) (reviewing whether a single justice erred in finding that an applicant for admission to the Bar had proved her good moral character “to a high degree of probability”).

[¶ 60] The Court also properly analyzed the law and determined that complete and unambiguous acceptance of previous wrongdoing is not a prerequisite for a finding of good character and fitness pursuant to Maine Bar Rule 7.3(j)(5). Court's Opinion ¶ 21. We agree with the Court that common sense requires an analysis of “the nature and extent of [an applicant's] failure to be fully repentant.” Court's Opinion ¶ 23.

II. FACTUAL FINDINGS

[¶ 61] Despite the Court's recognition of the standards applicable to its appellate review, however, it fails to apply those standards, instead making credibility determinations of its own and choosing to give weight to different evidence than was credited by the single justice. The Court goes astray from its own pronouncements when it decides which facts it believes from among many facts presented at a full hearing.

[¶ 62] Specifically, the Court today concludes that the evidence presented could not reasonably have persuaded the single justice that it was highly probable that Bailey “recognizes the wrongfulness and seriousness of the misconduct” that led to his disbarment in another jurisdiction. M. Bar R. 7.3(j)(5)(C). In doing so, the Court reviews the testimony that Bailey provided before the single justice and determines from his uninflected words on the transcript pages that the single justice could not have been persuaded that Bailey recognized the wrongfulness and seriousness of each act that formed a basis for his disbarment. Despite evidence that supports the single justice's findings, the Court amasses other evidence to justify its decision to vacate those findings. As this gathering of evidence suggests, the Court is, in function, making credibility determinations.

[¶ 63] Credibility determinations are not, however, properly undertaken by an appellate court. “[T]he fact finder who hears and sees the witnesses, who observes their hesitations, inflections and emphases, is in a more favorable position to judge their credibility than the appellate court which only reads the printed testimony.” Michaud v. Charles R. Steeves & Sons, Inc., 286 A.2d 336, 341 (Me.1972) (quotation marks omitted). A witness's credibility is “for the presiding justice to weigh.” Bd. of Overseers of the Bar v. Dineen, 481 A.2d 499, 502 (Me.1984). “Fact-finders are not required to believe or disbelieve witnesses and are called upon to determine the significance of the evidence and decide what inferences, if any, to draw from that evidence.” Huber v. Williams, 2005 ME 40, ¶ 15, 869 A.2d 737. Furthermore, “the fact-finder may believe some, all, or none of a witness's testimony,” In re Cyr, 2005 ME 61, ¶ 16, 873 A.2d 355, and “has the prerogative to selectively accept or reject testimony and to combine such testimony in any way,” Jenkins, Inc. v. Walsh Bros., Inc., 2001 ME 98, ¶ 22, 776 A.2d 1229 (quotation marks omitted).

[¶ 64] Given the testimony of Bailey and other witnesses about Bailey's awareness and acknowledgement of his wrongdoing, we would conclude that the evidence, and any reasonable inferences that may be drawn from that evidence, could reasonably have persuaded the single justice that it was highly probable that Bailey “recognize[d] the wrongfulness and seriousness of the misconduct” that led to his disbarment. M. Bar R. 7.3(j)(5)(C).

[¶ 65] Specifically, as the Court recognizes in its opinion, Bailey conceded in his testimony that there were some grounds for disbarment because he did engage in some improper conduct. He testified that he made a mistake in accepting stocks instead of an agreed $3 million fee in the Duboc case: “[T]he acceptance of the stock was riddled with conflicts I really didn't see at the outset.” See Court's Opinion ¶ 34 & n. 16. He also testified that, when he sent the ex parte letter to Judge Paul concerning Duboc, he acted improperly: “I would certainly agree now that it was unethical conduct, improper, unwise, and a knee-jerk reaction at a time when I was totally focused on a different case. And I make no excuses for having that transgression.” See Court's Opinion ¶ 48 & n. 28.

[¶ 66] He took responsibility for having failed to read the Florida court's January 12, 1996, order prohibiting any sale of stock as soon as the order arrived at his office: “I must hasten to add that certainly was substandard performance on my part. I should have made it my business to read the letter and not assume anything, to read the order. And I just didn't do that.” See Court's Opinion ¶ 41 n. 21. He also accepted responsibility for selling stock after receiving a second order on January 25 without getting clarification about whether the January 25 order supervened the January 12 order: “That was a presumption I never should have made. I should have found out whether the government thought it supervened the original order or whether the judge did, and so those transfers where made improperly.” See Court's Opinion ¶ 37 n. 18 (quoting, additionally, Bailey's admission before the single justice that, after January 25, he “improperly” spent additional stock proceeds on his personal and business obligations and, “[i]n retrospect, [he] would say [he] did” violate the January 25 order).

[¶ 67] Bailey's colleagues also testified about their observations of his acknowledgment of the seriousness and wrongfulness of his misconduct since the disbarment. Bailey's former law partner, now a Superior Court Justice in Massachusetts, described Bailey as having been arrogant before his disbarment but more “humble” and “careful” since. He testified that Bailey realizes that he had lapses in judgment and made serious mistakes that he would never repeat. A Maine attorney who has befriended Bailey in Maine since the disbarment also testified that he is “humble.” Another Maine lawyer testified that Bailey had expressed to him that he regretted and was sorry for what happened in the Duboc case. A lawyer and former Massachusetts State Senator who has known Bailey since before the disbarment testified that Bailey had “without a doubt” learned from the disbarment. A private investigator and former probation officer who worked with Bailey extensively before the disbarment and remains a friend of his testified that Bailey is remorseful and accepts his responsibility for what has happened.

[¶ 68] Although, given Bailey's testimony explaining or rationalizing his past behavior, the Justices in the majority might not have found as the single justice did if any of them had sat as the trial justice, the function of an appellate court is not to re-weigh the evidence and substitute its findings for those of the fact-finder. Rather, as an appellate court reviewing the findings in this matter, the Court must determine on appeal whether there is evidence in the record from which the single justice could reasonably have found that it was highly probable that Bailey “recognize[d] the wrongfulness and seriousness of [his] misconduct.” M. Bar R. 7.3(j)(5)(C). The evidence presented here can support a finding that Bailey recognized the wrongfulness and seriousness of his conduct. We would therefore affirm the single justice's finding that Bailey demonstrated his recognition of the wrongfulness and seriousness of his misconduct.

III. REVIEW OF OTHER FINDINGS

[¶ 69] Because we would affirm the finding on the recognition of wrongfulness, it would be necessary to review the single justice's other findings of fact.

A. Maine Bar Rule 7.3(j)(5)(A), (B), (D), (E), and (F)

[¶ 70] There is ample evidence in the record to demonstrate that Bailey has complied with the terms of all prior disciplinary orders.41 See M. Bar R. 7.3(j)(5)(A). He has “neither engaged nor attempted to engage in the unauthorized practice of law,” M. Bar R. 7.3(j)(5)(B); has not engaged in any additional misconduct since being disbarred, see M. Bar R. 7.3(j)(5)(D); and does not have continuing legal education obligations in Maine because he has never been admitted here before, see M. Bar R. 7.3(j)(5)(F). There is also evidence that can support a finding of the requisite honesty and integrity to practice law. See M. Bar R. 7.3(j)(5)(E). The remaining question is whether there are any other circumstances that the single justice was required to consider in determining whether Bailey's admission would “be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.” M. Bar R. 7.3(j)(5).

B. Detriment to the Integrity and Standing of the Bar, the Administration of Justice, or the Public Interest

[¶ 71] The only remaining factual issue that is relevant here but not addressed by the factors set forth in the rule is whether Bailey's substantial tax debt creates an unacceptable risk that Bailey's admission would “be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.” M. Bar R. 7.3(j)(5). Following the initial evidentiary hearing, the single justice in this matter declined to authorize Bailey's admission to the Bar until Bailey adequately addressed an outstanding judgment against him for a tax obligation that was then estimated to be approximately $2 million. After Bailey moved for reconsideration, the single justice determined that Bailey could be admitted because he was making a genuine effort to meet his tax responsibilities by seeking to resolve the matter through the litigation process and because he had paid or resolved every other obligation that had been imposed on him in a final judgment. As the majority notes, we have learned, since the single justice's ruling, that the United States Court of Appeals has affirmed the decision of the Tax Court. See Bailey v. IRS, No. 13–1455 (1st Cir. Mar. 14, 2014). The IRS has filed tax liens of more than $4.5 million against Bailey's property. Accordingly, we would conclude that the single justice's findings must be augmented on this issue.

[172] In determining the propriety of admission, a single justice must consider whether a particular candidate presents a risk to the public if entrusted with client funds.42 Bailey admittedly used the appreciation in value of stock entrusted to him as Duboc's attorney to pay personal expenses associated with developing an airplane, paying for a house, and maintaining his yacht. He also concedes that he was found in contempt and incarcerated when he could not repay sums that he obtained through sale of that stock, and that he stopped paying his mortgage and consented to a foreclosure on a Florida home when he could not afford payments on that property. In preparation for the pending application to the Maine Bar, he neglected to include information about several aspects of his finances or holdings, and indicated, once again, that he “made a mistake” and “overlooked” certain property. A consistent difficulty in maintaining accurate financial records is evident on this record.

[¶ 73] Because we now know that the United States Court of Appeals has affirmed the Tax Court's decision and that Bailey is therefore subject to tax liens of approximately $4.5 million, and because the record contains evidence that Bailey has difficulty maintaining proper financial records, additional evidence and analysis are necessary to evaluate whether Bailey's personal obligations could create a risk to the public. Accordingly, we would remand the matter for the single justice to take evidence and reconsider whether the risk that Bailey would mismanage funds in the context of paying his substantial tax debt would render his admission to the Bar “detrimental ․ to the public interest.” M. Bar R. 7.3(j)(5).

LEVY, J.