Attorney Grievance Commission v. Cocco

ADKINS, J. Petitioner, Attorney Grievance Commission of Maryland (“AGC”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Respondent, Darlene M. Coceo. 1 Bar Counsel charged that Coceo, in connection ⁴ with her representation of Robin L. Jones, engaged in professional misconduct by issuing an invalid subpoena and threatening third parties with suit if they did not comply. Bar Counsel alleged that in the course of her representation of Jones, Respondent violated a number of Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”). 2 As permitted by Maryland Rule 16-752(a), we referred the Petition to the Honorable Mark S. Chandlee of the Circuit Court for Calvert County to conduct an evidentiary hearing and make findings of fact and conclusions of law. After Coceo failed to file an answer, Bar Counsel filed a Motion for Order of Default on June 26, 2014. Approximately two weeks after the court granted the Motion, Coceo filed a Motion to Vacate Order of Default and Motion to Dismiss and Request for Punitive Damages Against Plaintiff and Attorney for Plaintiff Lydia Lawless (“Motion to Vacate”). 3 Coceo neither filed an answer to the Petition nor responded to Bar Counsel’s requests for admissions.

She did not attend the hearing conducted on August 8, 2014 by Judge Chandlee. At the hearing, Bar Counsel filed a motion pursuant to Maryland Rules 16-756 and 2-424(b) to have the requests for admissions deemed admitted, which the Circuit Court granted. After the hearing, the court denied Cocco’s Motion to Vacate and issued the findings of fact and proposed conclusions of law set forth below. ⁵ THE HEARING JUDGE’S FINDINGS OF FACT Coceo was admitted to practice law in Maryland on June 15, 2004. Robin L. Jones retained Coceo to pursue claims against a Walmart located in California, Maryland, sometime after sustaining injuries in an accident at the store on May 4, 2009.

Although she and Jones agreed to file suit in St. Mary’s County, Coceo never filed a lawsuit on behalf of Jones in any court. In July 2009, Coceo attempted to obtain a copy of surveillance video of the May 4 incident from Walmart employees, but was informed that a subpoena was required. Approximately two months later, in September 2009, Coceo returned to the store and “demanded that the Wal-Mart employees immediately provide her with a copy of the surveillance videotape[, threatening] that, if the Wal-Mart employees did not comply with her demand to produce a copy of the surveillance videotape, a lawsuit would be filed.” At this time, Coceo presented to the employees a knowingly invalid subpoena from the Circuit Court for St. Mary’s County. Although the subpoena was signed by the clerk and bore the seal of the court, Judge Chandlee found the subpoena to be invalid because “no lawsuit had been filed, it was not addressed to any individual and it requested immediate production of evidence.” See Md. Rule 2-510(c) (“Every subpoena shall contain: (1) the caption of the action, [and] (2) the name and address of the person to whom it is directed[.]”).

When the employees questioned the subpoena’s validity, Coceo threatened to sue them personally if they did not comply immediately. As a result of these threats and the subpoena, the employees gave the video to Coceo. Cocco’s representation of Jones was later terminated by the client before suit was filed. Bar Counsel began its investigation in response to a complaint filed by Christopher R. Dunn, an attorney for Walmart.

Coceo responded to Bar Counsel’s initial inquiry, arguing both that the complaint should be dismissed due to the statute of limitations or estoppel and that the subpoena was used to obtain pre-trial evidence to which Jones was entitled. Bar ⁶ Counsel replied to Coceo, indicating that she had failed to respond to Dunn’s core allegation: that she had presented a knowingly invalid subpoena and threatened the store’s employees with suit if they did not immediately comply with her demands for the surveillance video. Coceo again responded, writing: “Give[n] that the alleged behavior happened on 9/17/09 it is well past the 3 year Statute of Limitations^] accordingly I have nothing else to say on this matter.” Bar Counsel notified Coceo that the complaint had been docketed, informed her that attorney disciplinary matters are not subject to statutes of limitations, and requested a response to its most recent letter. Coceo responded that she “was unable to recall any additional information about the September 17, 2009 incident.” THE HEARING JUDGE’S CONCLUSIONS OF LAW Judge Chandlee found, by clear and convincing evidence, that Coceo violated MLRPC 3.4(c); 4.1(a)(1); 4.4(a); 8.1(a) and (b); and 8.4(a), (c), and (d).

MLRPC 3.4(c) provides that a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” The court concluded that Coceo violated Rule 3.4(c) when she “knowingly issued and served an invalid subpoena in violation of Maryland Rules 2-404, 2-411, and 2-412 and demanded immediate compliance.” MLRPC 4.1(a)(1) provides that “[i]n the course of representing a client a lawyer shall not knowingly ... make a false statement of material fact or law to a third person.” The court concluded that Coceo violated Rule 4.1(a)(1) when she “misrepresented to Wal-Mart employees that they were required to comply with the invalid subpoena.” MLRPC 4.4(a) provides that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that the lawyer knows violate the legal rights of such a person.” The court conclud ⁷ ed that Coceo violated Rule 4.4(a) when she presented the invalid subpoena and misrepresented to the employees that they were obligated to comply. MLRPC 8.1 provides: An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority!.] The court concluded that Coceo violated Rule 8.1(a) when she “misrepresented to Bar Counsel that the subpoena was a valid means of obtaining pretrial discovery” and 8.1(b) when she “failed and refused to respond to Bar Counsel’s requests for information regarding the issuance of the subpoena and the communications between [Coceo] and Wal-Mart employees.” MLRPC 8.4 provides in part: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice!.] The court concluded that Cocco’s violation of several MLRPC provisions constituted a violation of Rule 8.4(a). It also found a violation of Rule 8.4(c) from Cocco’s presentation of the invalid subpoena and misrepresentation to the employees that they were obligated to comply. In explaining that Coceo also violated Rule 8.4(d), the court summarized: “[Cocco’s] conduct, taken as a whole including issuing and serving an invalid subpoena, threatening Wal-Mart employees, . . . and refusing ⁸ to respond to Bar Counsel’s requests for information, brings the profession into disrepute and violat[es] Rule 8.4(d).” DISCUSSION Standard Of Review “In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record.” Att’y Grievance Comm’n v. Bleecker, 414 Md. 147, 167 , 994 A.2d 928, 940 (2010) (citations omitted). “We accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous.” Att’y Grievance Comm’n v. Guida, 391 Md. 33, 50 , 891 A.2d 1085, 1095 (2006).

Pursuant to Maryland Rule 16-759(b)(l), we review the hearing judge’s proposed conclusions of law without deference. Thus, “the ultimate determination ... as to an attorney’s alleged misconduct is reserved for this Court.” Att’y Grievance Comm’n v. Garfield, 369 Md. 85, 97 , 797 A.2d 757, 764 (2002) (alteration in original) (citations omitted). “In that regard, we examine the record to ascertain whether there was sufficient evidence to support the hearing judge’s legal conclusions, by a clear and convincing standard of proof.” Att’y Grievance Comm’n v. Tanko, 427 Md. 15, 27-28 , 45 A.3d 281, 288 (2012) (citation and internal quotation marks omitted). No Exceptions — Respondent’s Admissions Neither Coceo nor Bar Counsel notes any exceptions to the hearing judge’s findings of fact or conclusions of law. 4 And, because Coceo filed no response to Bar Counsel’s requests for ⁹ admissions, they are deemed admitted. Md. Rule 2-424(b); see Att’y Grievance Comm’n v. De La Paz, 418 Md. 534, 542 , 16 A.3d 181, 186 (2011) (“[Attorney] failed to file an answer to Bar Counsel’s Petitions or respond to its Requests for Admissions of Facts and Genuineness of Documents; thus, the factual averments in those Petitions were deemed admitted.”).

When an attorney has failed to respond to Bar Counsel’s requests for admissions and attempted to challenge a Rule 2-424(b) admission for the first time before this Court, we have denied the request. We have opined that an attorney “cannot challenge the sufficiency of the evidence supporting the findings of fact by advocating for the consideration of evidence that is contradictory to her admissions or not in the record.” Att’y Grievance Comm’n v. O’Leary, 433 Md. 2, 31 , 69 A.3d 1121, 1138 (2013); see Murnan v. Hock, 274 Md. 528, 534 , 335 A.2d 104, 108 (1975) (referring to unanswered requests deemed admitted as “conclusively binding”). Thus, we do not disturb the factual findings deemed admitted. As to any findings not deemed admitted due to Cocco’s failure to respond to the request for admissions, both parties were permitted to file “(1) exceptions to the findings and conclusions of the hearing judge and (2) recommendations concerning the appropriate disposition[.]” Md. Rule 16-758(b).

Cocco filed no exceptions. Thus, we shall accept the hearing judge’s “findings of fact as established for the purpose of determining appropriate sanctions.” Md. Rule 16-759(b)(2)(A). CONCLUSIONS OF LAW We also agree with the hearing judge’s conclusions that Coceo violated MLRPC 3.4(c); 4.1(a)(1); 4.4(a); 8.1(b); and 8.4(a), (c), and (d). In knowingly presenting an invalid subpoena in contravention of Maryland Rule 2-510, 5 Coceo ¹⁰ violated MLRPC 3.4(c).

See Att’y