Attorney Grievance Commission v. O'Leary

ADKINS, J., Concurring In Part and Dissenting In Part. There is no question that Maryland has taken a clear stance against a lawyer entering a sexual relationship with a client while representing that client in a matrimonial matter. See Attorney Grievance Comm’n v. Culver, 381 Md. 241, 274 , 849 A.2d 423, 443 (2004). Thus, I agree with the Majority that Respondent should be disciplined for doing so, and join in most other respects with the Majority opinion.

But, respectfully, I submit that the Majority is mistaken in accepting Bar Counsel’s invitation to broaden the scope of Rule 1.8(i). Rule 1.8(1) provides that a “lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client.” The Majority finds this Rule applicable to O’Leary on grounds that she “participated financially in paying the child support obligations of Mr. Cosgrove, while she negotiated the amount of child support that he was to pay Diana Cosgrove.” Maj. Op. at 36, 69 A.3d at 1141. I disagree that her action in representing Mr. Cosgrove, while living with him and sharing expenses, constituted a violation of Rule 1.8(i), and believe this holding has broad implications for practicing attorneys.

Both Maryland and the American Bar Association explain the history and purpose of Rule 1.8(i) as follows: ⁴⁴ Maryland Lawyers’ Rules of Professional Conduct 1.8 cmt. 16 (emphasis added); American Bar Association, A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2005, 217 (2006) (emphasis added). 1 ⁴³ Paragraph (i) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation----[This] general rule has its basis in common law champerty and maintenance and is designed to avoid giving the lawyer too great an interest in the representation. In addition, when the lawyer acquires an ownership interest in the subject of the representation, it will be more difficult for a client to discharge the lawyer if the client so desires. ⁴⁴ The concept of champerty originated in medieval England. Its initial purpose was to stop unscrupulous nobles and royal officials from lending their names to bolster the credibility of doubtful and fraudulent claims in return for a share of the property recovered. See Osprey, Inc. v. Cabana Ltd. P’ship, 340 S.C. 367 , 532 S.E.2d 269, 273 (2000); see also R.D. Cox, Champerty as We Know It, 13 Memphis State U.L.Rev. 139 (1983); Max Radin, Maintenance by Champerty, 24 Cal.L.Rev. 48 (1935); Percy H. Winfield, The History of Maintenance and Champerty 35 Law Q. Rev. 50 (1919).

As times changed, the doctrine evolved away from lords and nobles, but retained its core focus on preventing strangers to litigation from obtaining a financial stake in a case. The legal ency ⁴⁵ clopedia Corpus Juris, for example, provides a helpful overview of the topic: At common law, champerty is defined to be a bargain by the terms of which a person having otherwise no interest in the subject matter of an action undertakes to carry on the suit at his or her own expense, or to aid in so doing, in consideration of receiving, in the event of success, some part of the land, property, or money recovered or deriving some benefit therefrom. Champerty is an officious intermeddling in a suit by a stranger, by maintaining or assisting either party with money or otherwise to prosecute or defend it, and dividing the proceeds obtained in the suit between the party and the stranger. Champerty also has been defined as a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part of any judgment proceeds.

An agreement is said to be “champertous” when a person without an interest in another’s lawsuit undertakes to carry it on at his or her own expense, in whole or in part, in consideration of receiving, in the event of success, a part of the proceeds of the litigation. 14 C.J.S. Champerty and Maintenance § 1 (2006) (footnotes omitted). This text goes on to explain the limits of the doctrine: It is necessary that the interference in the litigation is clearly officious and for the purpose of stirring up strife and continuing litigation. Officious intermeddling, as a necessary element of champerty, is offering unnecessary and unwanted advice or services or being meddlesome in a highhanded or overbearing way. A contract which contains an undertaking to defray the expenses of litigation for consideration other than proceeds of the litigation is not champerty.

The prohibition against champerty is designed to cure malicious “stirring up” of litigation that would not otherwise have occurred. The activity of champerty is repugnant to public policy against profiteering and speculating in litiga ⁴⁶ tion and is grounds for denying the aid of the court. Nevertheless, the doctrine of champerty is strictly limited. Id.

(footnotes omitted). In the same vein, a Pennsylvania court explained: “The activity of champerty has long been considered repugnant to public policy against profiteering and speculating in litigation and grounds for denying the aid of the court.” Clark v. Cambria Cnty. Bd. of Assessment Appeals, 747 A.2d 1242 , 1245-46 (Pa.Commw.Ct.2000) (emphasis added). 2 Clearly, then, the notions underlying champerty and maintenance focus on the person’s acquisition of a specific interest in the litigation at hand. The history talks of “stirring up litigation” and “speculating in litigation.” It is this type of speculation, then, where a lawyer obtains a financial interest in a case for the clear purpose of making money, that violates Rule 1.8(i).

In this regard, defending a child-support claim by a client’s estranged spouse cannot fairly be described as “instigating” or “speculating” in litigation. The informal sharing of income and expenses between a romantic couple in the payment of child support is not equivalent to champerty because the living arrangement is not focused on, or motivated by, the litigation. Instead, the arrangement has different and broader general purposes relating to everyday life and how a couple decides to pay for their expenses. To the extent, therefore, that O’Leary ⁴⁷ “acquired an interest” in Mr. Cosgrove’s defense of his spouse’s child support claim, it was only incidental to their mutual pursuit of an intimate living arrangement.

It certainly was not an attempt by O’Leary to instigate or speculate in dubious litigation. To hold otherwise, as the Majority does, has broad implications for routine conduct that lawyers regularly engage in on behalf of family members and romantic partners. For example, if a lawyer’s ailing father were to move in with him, and share income and expenses during some litigation against the father’s health insurance company, which the lawyer was handling, he would “acquire an interest” in the