Attorney Grievance Commission v. Gage-Cohen

McDonald, j. This attorney discipline matter concerns an attorney who accepted $2,500 from a client as a retainer for a divorce case, had no further communication with her client, performed no work on the matter, and apparently abandoned her Maryland law practice. The attorney, who did not maintain a separate trust account, deposited the client’s payment into a general account and never returned the unearned fee to the client. The attorney did not cooperate with Bar Counsel’s disciplinary investigation, failed to respond to the disciplinary charges later filed against her, and did not participate in the proceedings before the hearing judge or our Court.

As a result, we have no information that would mitigate the sanction for her misconduct. We hold that she violated multiple provisions of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) as well as related rules and statutes and, based on those violations, disbar her. ¹⁹⁵ Background Procedural Context On June 5, 2013, the Attorney Grievance Commission (“Commission”), through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against Christine Boco Gage-Cohen. The Commission charged Ms. Gage-Cohen with violating MLRPC 1.1 (competence), 1.2(a) (scope of representation and allocation of authority between client and lawyer), 1.3 (diligence), 1.4 (communication), 1.5(a) (fees), 1.15 (safekeeping property), 1.16(a) and (d) (declining or terminating representation), 8.1(b) (bar admission and disciplinary matters), and 8.4(a), (c), and (d) (misconduct). She was also charged with violating Maryland Rules 16-604 (trust account—required deposits), 16-606.1 (trust account recordkeeping), and 16-609(a) (prohibited transactions); and Maryland Code, Business Occupations and Professions Article (“BOP”), § 10-306 (misuse of trust money).

Pursuant to Maryland Rule 16-752(a), this Court designated Judge William C. Mulford, II, of the Circuit Court for Anne Arundel County, to conduct a hearing and to provide findings of fact and recommended conclusions of law. After several unsuccessful attempts to locate Ms. Gage-Cohen, she was personally served in Tennessee on November 19, 2013. She did not respond to the summons and, on December 19, 2013, Bar Counsel filed a Motion for an Order of Default. The motion was granted on December 27 and entered on December 30, 2013; a hearing was scheduled for February 11, 2014.

Ms. Gage-Cohen did not move to vacate the order; nor did she attend the hearing. The hearing judge issued findings of fact and recommended conclusions of law on March 4, 2014. Neither party filed exceptions. This Court heard oral argument on September 3, 2014.

Ms. Gage-Cohen did not appear. Facts Ms. Gage-Cohen was admitted to the Maryland Bar in 1985. On March 13, 2013, while this matter was under investigation, ¹⁹⁶ she was suspended for failing to pay the Client Protection Fund assessment. See Maryland Rule 16-811.6(d).

As noted above, neither party excepted to the hearing judge’s findings of fact concerning the alleged violations. We accept those findings as established. See Maryland Rule 16-759(b)(2)(A). Those findings concerned Ms. Gage-Cohen’s failure to follow through with her agreement to represent a client in a divorce case, her mishandling of funds related to that representation, and her lack of responsiveness to Bar Counsel’s inquiry.

On March 14, 2012, Mary L. Turner paid Ms. Gage-Cohen $2,500 with the understanding that Ms. Gage-Cohen would seek a Limited Divorce Agreement and eventually an Absolute Divorce on Ms. Turner’s behalf. Ms. Turner also gave Ms. Gage-Cohen several documents, including financial statements and a separation agreement. Ms. Gage-Cohen did not deposit Ms. Turner’s $2,500 payment into a client trust account, and did not obtain Ms. Turner’s informed, written consent to make other arrangements. The hearing judge found Ms. Gage-Cohen did not maintain an attorney trust account at all in 2012.

After accepting Ms. Turner’s payment, Ms. Gage-Cohen apparently abandoned Ms. Turner’s case. Ms. Turner called and emailed Ms. Gage-Cohen repeatedly over several months, with no response. Eventually, Ms. Turner attempted to terminate the representation and sought a refund of her payment and the return of her documents. But Ms. Gage-Cohen did not respond and did not return Ms. Turner’s documents or the unearned fee.

Ms. Turner filed a complaint with the Commission on June 14, 2012. On June 22, July 20, and August 17, 2012, Bar Counsel sent letters to Ms. Gage-Cohen at the address on file with the Client Protection Fund requesting her response to the complaint. Ms. Gage-Cohen did not answer any of those requests. Beginning on August 30, 2012, Commission Investigator Dennis Biennas attempted to contact Ms. Gage-Cohen personally.

She did not answer Mr. Biennas’ phone calls, but ¹⁹⁷ agreed to speak with him when he arrived unannounced at her office on September 25, 2012. She admitted receiving the letters from the Commission, ascribed her lack of response to “personal issues,” and promised to respond within three days. She never responded. In November 2012, Bar Counsel sent Ms. Gage-Cohen a final request, soliciting the following information and records: (1) a response to Ms. Turner’s complaint, (2) her reasons for failing to respond to Bar Counsel’s earlier requests, (3) her entire client file for Ms. Turner, (4) a statement about Ms. Gage-Cohen’s then-pending traffic citations in the District Court, and (5) her attorney trust account records for the period March 2012 through October 2012.

Ms. Gage-Cohen neither responded to the letter nor produced any of the requested information or records. She did return Ms. Turner’s documents at some point after the Commission’s investigation and apparently left Maryland for Tennessee, where she was ultimately served with the charges in this case. Discussion The hearing judge found that Ms. Gage-Cohen committed all of the charged violations. We review the hearing judge’s conclusions of law without special deference.

Maryland Rule 16—759(b)(1). Abandonment of the Client MLRPC 1.1 states that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In other words, a knowledgeable and skillful attorney may nevertheless provide incompetent representation if the lawyer is not thorough or is unprepared. Attorney Grievance Comm’n v. Brady, 422 Md. 441, 457 , 30 A.3d 902 (2011); Attorney Grievance Comm’n v. McCulloch, 404 Md. 388, 397-98 , 946 A.2d 1009 (2008); Attorney Grievance Comm’n v. Guida, 391 Md. 33, 54 , 891 A.2d 1085 (2006).

A lawyer’s failure to prepare a case after accepting a fee violates MLRPC 1.1. Attorney ¹⁹⁸ Grievance Comm’n v. De La Paz, 418 Md. 534, 553-54 , 16 A.3d 181 (2011). MLRPC 1.2(a) states, in relevant part, that “a lawyer shall abide by a client’s decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued.” We have held that “[w]hen a lawyer fails to take any steps towards the client’s objective, the lawyer necessarily fails to abide by the client’s decision concerning that objective.” Attorney Grievance Comm’n v. Garrett, 427 Md. 209, 223 , 46 A.3d 1169 (2012). MLRPC 1.3 provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” A lawyer who takes “no action whatsoever” in representing a client violates this rule.

Attorney Grievance Comm’n v. Shakir, 427 Md. 197, 205 , 46 A.3d 1162 (2012); see also De La Paz, 418 Md. at 554 , 16 A.3d 181 . MLRPC 1.4 states, in pértinent part, that “[a] lawyer shall ... keep the client reasonably informed about the status of the matter; [and] promptly comply with reasonable requests for information ...” As in the instant case, conduct that violates the diligence and promptness standard of MLRPC 1.3 often also violates the communication standard of MLRPC 1.4. See Attorney Grievance Comm’n v. Pinno, 437 Md. 70, 80 , 85 A.3d 159 (2014); Attorney Grievance Comm’n v. Kremer, 432 Md. 325, 336 , 68 A.3d 862 (2013). MLRPC 1.5(a) states, in pertinent part, that “[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” When an attorney charges a fee but does no work, the fee is per se unreasonable.

Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 502 , 813 A.2d 1145 (2002); Attorney Grievance Comm’n v. Chapman, 430 Md. 238, 275 , 60 A.3d 25, 48 (2013); Attorney Grievance Comm’n v. Stinson, 428 Md. 147, 184 , 50 A.3d 1222 (2012). It is irrelevant that the fee is “initially reasonable” if the attorney fails to perform any of the ¹⁹⁹ services for which the attorney was paid. Attorney Grievance Comm’n v. Lawson, 401 Md. 536, 580 , 933 A.2d 842 (2007). MLRPC 1.16(a) provides, with an exception not pertinent here, that “a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: ...

(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged.” Section (d) of that rule provides that “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.” When an attorney does nothing to advance the client’s interest, and then abandons the client without notice and without returning unearned fees, the attorney violates MLRPC 1.16(d). Kremer, 432 Md. at 336 , 68 A.3d 862 ; Attorney Grievance Comm’n v. Park, 427 Md. 180, 193 , 46 A.3d 1153 (2012); see also Attorney Grievance Comm’n v. Costanzo, 432 Md. 233, 255 , 68 A.3d 808 (2013). MLRPC 8.4(a) states that “[i]t is professional misconduct for a lawyer to: (a) violate or attempt to violate the